State v. Normandy, 382-81

• Decision Date: 06 September 1983
• Docket Number: No. 382-81,382-81
• Citation: 465 A.2d 1358,143 Vt. 383
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. William NORMANDY.

Page 1358

465 A.2d 1358

143 Vt. 383

STATE of Vermont v. William NORMANDY.

No. 382-81.

Supreme Court of Vermont.

Sept. 6, 1983.

Deborah O. Frankel, Chittenden County Deputy State's Atty., Burlington, for plaintiff-appellee.

Andrew B. Crane, Defender Gen., William A. Nelson, Appellate Defender, Nancy E. Kaufman, Acting Appellate Defender, and Alan Rosenfeld, Law Clerk (on brief), Montpelier, for defendant-appellant.

Before HILL, UNDERWOOD, PECK and GIBSON, JJ., and LARROW, J. (Ret.), Specially Assigned.

GIBSON, Justice.

Defendant appeals from a conviction after trial by jury of driving under the influence of intoxicating liquor (DUI) in violation of 23 V.S.A. § 1201(a)(2). He received a suspended sentence of 30 to 90 days and was ordered to pay a $190 fine. The sentence was thereafter stayed pending appeal to this Court. We reverse.

Defendant bases his appeal on two related claims. He argues first that the prejudicial effect of inadmissible testimony elicited during the prosecution's case-in-chief, which revealed the existence of a third breath sample, was not cured by the court's cautionary instruction at the close of the evidence. Secondly, defendant claims that he was denied the procedural protections guaranteed by the implied consent laws, 23 V.S.A. § 1202.

The significant facts leading to defendant's arrest and subsequent conviction are the subject of a stipulation. It is agreed that at approximately 3:00 a.m. on March 1, 1981, defendant was stopped by an officer of the Burlington Police Department and shortly thereafter taken to headquarters for DUI processing. Upon arrival at headquarters, defendant was read his Miranda rights and one of the two alternate paragraphs on the "Sample Request Form," as follows: "Since you are not going to jail, you have to make your own arrangements [to have a blood test]." However, after further processing, the police decided to lodge defendant overnight in jail. The paragraph on the form which was not read provides: "Since I am taking you to jail, you must tell me at this time if you want a blood test so I can make arrangements." In addition, the parties stipulated as follows: "The Defendant would have requested that the officer make arrangements for a blood sample to be taken if he had been so informed. The Defendant did not request that a blood sample be taken."

We review first defendant's claim that reference to a "third sample" of his breath by the State was reversible error. The State presented only two witnesses; first, the police officer who stopped and eventually processed defendant for DUI, and second, the chemist who analyzed two breath samples taken from defendant. Near the beginning of his testimony, the officer described the circumstances leading to his decision to stop defendant. After mentioning his preliminary testing, the officer told of driving defendant to headquarters for further processing. He testified that he read defendant "the complete D.W.I. procedure, both the Miranda and the Implied Consent Form requesting that [defendant] give a breath sample." The state's attorney then asked what an implied consent form was, and the officer responded that it informs defendant of his statutory obligation "to give the police officer a sample of his breath for testing purposes, and a sample will be held for independent analysis at his request."

Defendant immediately objected to the reference to a sample for defendant's use, and at the ensuing bench conference, asked for a mistrial. The court declined to rule on the motion and allowed the direct examination by the State to proceed. During the remainder of the State's evidence, several other references were made to the chemical analysis of defendant's breath to the point where it was clear that only two samples were tested. No further explanation was provided regarding the whereabouts of the sample taken for defendant's independent testing. At the close of the evidence, defendant renewed his mistrial motion and the court denied it, but retroactively sustained the objection to the above-quoted testimony. To effect a cure, the court gave a limiting instruction, although defendant insisted that a cure was no longer possible and that a mistrial was now inevitable. The instruction repeated the testimony about a third sample, taken for defendant's benefit and held for independent analysis, and cautioned the jury to disregard completely "the existence or nonexistence" of such a sample, as defendant was under no obligation to introduce evidence concerning it.

While the trial court's caution to the jury was substantively correct, see State v. McSheffrey, 131 Vt. 329, 336, 306 A.2d 702, 706 (1973), it would have been more appropriate if given immediately. At the close of the evidence, repetition of prejudicial and inadmissible information may in fact only emphasize such error in the minds of the jury. For this reason, a strongly worded and prompt admonition is preferred, and in appropriate cases, will cure the need for a mistrial. Lacking such action here, we are constrained to reverse defendant's conviction.

This Court has...