State v. Noyes, No. 84-397
| Docket Nº | No. 84-397 |
| Citation | 147 Vt. 426, 519 A.2d 1152 |
| Case Date | November 07, 1986 |
| Court | United States State Supreme Court of Vermont |
Page 1152
v.
Robert P. NOYES.
Page 1153
[147 Vt. 427] David N. Weinstein, Essex Co. State's Atty., St. Johnsbury, for plaintiff-appellee.
Martin and Paolini, Barre, for defendant-appellant.
Before [147 Vt. 426] ALLEN, C.J., HILL, PECK and GIBSON, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.
[147 Vt. 427] HILL, Justice.
This is an appeal from a conviction, after jury trial, of driving while intoxicated, 23 V.S.A. § 1201(a)(2). Defendant contends that the court's instructions to the jury removed from its consideration two essential elements of the crime, creating plain error mandating reversal. We agree, reverse the defendant's conviction, and remand the cause for a new trial.
A recitation of the facts underlying the defendant's conviction is unnecessary; our review of the controlling issue in this appeal can be limited to a review of the trial court's instructions to the jury. The court stated:
In this case in the course of argument, there appears to have been at least a tacit admission by counsel for the defendant that Mr. Noyes, in fact, operated a motor vehicle and that he did it on a public highway. That's implicit from the argument which he made, so the only question, real question, in the case is whether Mr. Noyes was under the influence of intoxicating liquor....
In fact, there were no concessions made by defendant's counsel of any elements of the offense. Under these circumstances, it was incumbent on the State to prove beyond a reasonable doubt all three elements of the crime of driving while intoxicated: (1) operation of a motor vehicle; (2) on a public highway; (3) while under the influence of intoxicating liquor. 23 V.S.A. § [147 Vt. 428] 1201(a)(2); State v. Dusablon, 142 Vt. 95, 97, 453 A.2d 79, 81 (1982).
In State v. Boise, 146 Vt. 46, 48, 498 A.2d 495, 496 (1985), we recently held that "[a]n instruction which informs the jury that [an] element of the crime [of DUI] has been conceded, when in fact it was not, improperly relieves the State of its burden." In Boise, the trial judge expressly instructed that defendant had conceded an element of the crime, when in fact he had not. In this case, the judge instructed that there was "at least a tacit admission" by defendant's counsel on the first two elements of the offense, and that the only "real question" was on the third element. Whether an instruction impermissibly relieves...
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State v. Roy, No. 87-536
...States v. Brown, 692 F.2d 345, 348 (5th Cir.1982). Defendant argues that this Court has already adopted such a standard in State v. Noyes, 147 Vt. 426, 428, 519 A.2d 1152, 1153 (1986), and State v. Boise, 146 Vt. 46, 48, 498 A.2d 495, 496 (1985). However, Boise and Noyes involved circumstan......
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State v. Lambert, No. 01-390.
...decisions suggest that instructing the jury that an element of the offense has been conceded is plain error per se, see State v. Noyes, 147 Vt. 426, 428, 519 A.2d 1152, 1153 (1986); State v. Boise, 146 Vt. 46, 48, 498 A.2d 495, 496 (1985), we have specifically rejected applying plain error ......
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State v. Loveland, No. 95-136
...his conviction. Defendant finds some support for his position in State v. Camley, 140 Vt. 483, 438 A.2d 1131 (1981), and State v. Noyes, 147 Vt. 426, 519 A.2d 1152 (1986). In Camley, defense counsel focused on whether defendant killed the victim in self-defense or in the heat of passion, an......
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State v. Larose, No. 85-240
...trial judge charged the jury that the defendant had conceded an element of the charge when no concession had been made. In State v. Noyes, 147 Vt. 426, 427-29, 519 A.2d 1152, 1153-54 (1986), we reversed a conviction where the court charged that defendant made a "tacit admission" with respec......
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State v. Roy, No. 87-536
...States v. Brown, 692 F.2d 345, 348 (5th Cir.1982). Defendant argues that this Court has already adopted such a standard in State v. Noyes, 147 Vt. 426, 428, 519 A.2d 1152, 1153 (1986), and State v. Boise, 146 Vt. 46, 48, 498 A.2d 495, 496 (1985). However, Boise and Noyes involved circumstan......
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State v. Lambert, No. 01-390.
...decisions suggest that instructing the jury that an element of the offense has been conceded is plain error per se, see State v. Noyes, 147 Vt. 426, 428, 519 A.2d 1152, 1153 (1986); State v. Boise, 146 Vt. 46, 48, 498 A.2d 495, 496 (1985), we have specifically rejected applying plain error ......
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State v. Loveland, No. 95-136
...his conviction. Defendant finds some support for his position in State v. Camley, 140 Vt. 483, 438 A.2d 1131 (1981), and State v. Noyes, 147 Vt. 426, 519 A.2d 1152 (1986). In Camley, defense counsel focused on whether defendant killed the victim in self-defense or in the heat of passion, an......
-
State v. Larose, No. 85-240
...trial judge charged the jury that the defendant had conceded an element of the charge when no concession had been made. In State v. Noyes, 147 Vt. 426, 427-29, 519 A.2d 1152, 1153-54 (1986), we reversed a conviction where the court charged that defendant made a "tacit admission" with respec......