State v. Redmond

• Citation: 234 A.3d 958
• Decision Date: 15 May 2020
• Docket Number: No. 18-226,18-226
• Parties: STATE of Vermont v. Matthew J. REDMOND
• Court: United States State Supreme Court of Vermont

234 A.3d 958

STATE of Vermont

v.Matthew J. REDMOND

No. 18-226

Supreme Court of Vermont.

May 15, 2020

David Tartter and James Pepper, Deputy State's Attorneys, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Dooley, J. (Ret.) and Pearson, Supr. J. (Ret.), Specially Assigned

EATON, J.

¶ 1. Defendant appeals his convictions for reckless endangerment, unlawful mischief, and providing false information to a law enforcement officer. He argues that: (1) the court should have sua sponte granted him a judgment of acquittal on the first two counts because the State was required, and failed, to establish that he threw a "prybar" at the windshield of a passing vehicle; (2) he was entitled to a sua sponte judgment of acquittal on the third count because the State failed to narrow the allegedly false information at issue or prove that every statement he made satisfied the elements of this crime; and (3) the court failed to properly instruct the jury regarding reasonable doubt, the presumption of innocence, and the requirement of unanimity. Defendant raises all of these arguments for the first time on appeal. We reverse and remand defendant's false-information conviction for a new trial; we affirm his remaining convictions.

I. Trial Proceedings

¶ 2. Defendant was charged with numerous crimes after allegedly throwing an object at the windshield of a passing pickup truck and lying to police about what occurred. The driver of the truck was sixteen years old. The following evidence was presented at a one-day trial. The driver testified that around 9:00 p.m. on a snowy February evening, he dropped several friends off at a home on Jockey Road in Ferrisburgh, Vermont. He drove cautiously because the road was covered with an inch or more of snow. The friend's house was located at the dead-end of Jockey Road. The driver dropped off his friends, turned around, and headed home.

¶ 3. Shortly thereafter, the driver saw a man standing in the middle of Jockey Road. The man held a large object, which in the moment the driver thought was a splitting maul or sledgehammer. The driver had only seconds to look at the object, it was dark, and he was scared. He moved to the far right to avoid striking the man and went off the traveled portion of the road. The man threw the object at his windshield, shattering the glass on the driver's side. Glass flew into the driver's eyes and he lost control of his truck. He feared for his life. He maneuvered his truck out of the ditch and drove back to his friend's house. On his way, he saw the man hide behind a tree. The driver rushed inside his friend's house and recounted what occurred. The friend's parents helped the driver with his eyes and called police. The driver's friend testified to a similar version of events.

¶ 4. Photographs of the damaged truck were admitted into evidence, including close-up photographs of the shattered windshield. The driver testified that the photographs showed orange flakes in the broken windshield that were not present before the incident.

¶ 5. One of the investigating officers also testified. He stated that two calls came in from Jockey Road that evening. The first reported someone throwing a sledgehammer or something similar through a vehicle's windshield. The second call, made by defendant twenty-four minutes later, reported erratic operation. As they drove up Jockey Road, police did not see any signs of erratic operation, such as yaw marks. They did see tire marks where it appeared that a vehicle had gone off and then back onto the roadway. The tracks appeared to reflect an abrupt turn off and then back onto the roadway rather than a vehicle that had slowly drifted off the road. The marks were just to the left of a driveway, where the officers observed someone standing in dark clothing. The trooper also saw a divot in the center of the roadway, just after the truck's tire marks. It looked like something hit the roadway after bouncing off the truck's windshield. Video from the trooper's cruiser was played for the jury.

¶ 6. The trooper spoke to the driver, who was very shaken up. The driver recounted what occurred, as set forth above. The trooper examined the truck and saw that something appeared to have punctured the truck's windshield. The glass on the driver's side was completely smashed, with a hole right where the driver's head would have been.

¶ 7. After speaking with the driver, police spoke with defendant, who was at a nearby property where siblings Matthew and Marion Swan resided. Defendant knew the Swans well; he worked for them and once had a relationship with Ms. Swan. Defendant said he was at the Swan property for work-related reasons. According to defendant, a vehicle was operating erratically on Jockey Road all night long. He walked toward the road for a closer look and saw an older pickup truck like that driven by the complainant. The truck swerved, drove directly at him, and tried to hit him; he hid behind a tree. The truck then began to fishtail and went into a ditch on the opposite side of the road. The truck turned around, came back directly at defendant, and tried to hit him again. Defendant hid behind a different tree. Defendant pointed to tire tracks in the snow, which he claimed belonged to the truck. The officer pointed out that the tire tracks were from his police vehicle and noted that they led right to his SUV.

¶ 8. As indicated above, the trooper saw nothing in the roadway consistent with defendant's version of events. He testified that for defendant's story about the complainant trying to hit him to be true, defendant would have had to have been standing in the middle of the roadway because the truck's tire marks never left the westbound portion of the roadway. The trooper also observed footprints behind one of the trees near the driveway, but not behind the second tree.

¶ 9. The trooper asked defendant if he had thrown anything at the vehicle. Because the initial police report mentioned a sledgehammer, he asked defendant what happened with the sledgehammer. Defendant initially did not say anything. He looked at a garage on the property and at Mr. Swan, who was standing next to him. Defendant denied owning a sledgehammer and said he did not know what the officer was talking about.

¶ 10. Police found several sledgehammers in the garage, but none appeared wet or snowy. They observed a prybar with a broken orange handle lying alone on the middle of the garage floor. The troopers found this odd, as the other tools were on workbenches or up against the wall. They did not collect the prybar that evening. A trooper seized it two weeks later when he went to the Swan property in response to a call from Ms. Swan. The trooper testified that after he saw photographs of the orange plastic pieces embedded in the broken windshield, it clicked for him that the pieces were possibly from the prybar's broken orange handle. He identified the orange pieces in the photographs. He testified that the pieces appeared to be from the prybar's handle and that the prybar could have caused the damage to the windshield.

¶ 11. Defendant testified on his own behalf, largely reiterating what he said to police, with some additions. Defendant stated for the first time at trial that after seeing the truck fishtailing down the road, he heard glass breaking and a truck going off the road about two-hundred yards away, toward the main road. He said that the truck then turned around and went toward the dead-end. Defendant denied being in the middle of the road or throwing anything at the truck.

¶ 12. The Swans also testified on defendant's behalf. Mr. Swan was not present during the alleged incident. He testified, contrary to his sworn statement to police, that he saw a truck operating erratically on Jockey Road all evening. He said that the prybar was his and that he had broken its handle several years earlier by hitting it with a hammer. He believed that the prybar was in the middle of the floor because he used it the day before the incident.

¶ 13. Ms. Swan stated that on the evening in question, she went downstairs after hearing a loud noise. She saw a truck heading down the road. She described defendant as frantic, saying that someone had gone into a ditch. Defendant told her that a truck had swerved and hit a tree. On cross-examination, Ms. Swan acknowledged that, since this incident, she had reunited with her husband, Joseph Ploof. Mr. Ploof owned a truck like the driver's truck. According to Ms. Swan, defendant was convinced that Mr. Ploof was driving on Jockey Road that evening and that Mr. Ploof tried to hit him.

¶ 14. On rebuttal, the driver testified that he was not on Jockey Road until 9:00 p.m. that evening. The trooper testified to his conversation with Ms. Swan, reiterating her statements that defendant identified Mr. Ploof's truck as the one that tried to hit him and defendant believed that he damaged Mr. Ploof's truck. The trooper also testified that Ms. Swan provided new details at trial that she did not express on the day of the incident. He stated that both Swans had a reputation in the community for being untruthful.

¶ 15. The jury convicted defendant of reckless endangerment, unlawful mischief, and providing false information to a law enforcement officer. It acquitted him of aggravated assault with a deadly weapon, aggravated assault, and obstructing traffic. This appeal followed.

II. Arguments on Appeal

A. Reckless Endangerment and Unlawful Mischief – Sufficiency of the Evidence

¶ 16. Defendant first asserts that the court should have sua sponte granted him a judgment of acquittal on the reckless-endangerment and unlawful-mischief counts. According to defendant, the State's theory was that he threw a prybar at the driver's windshield, and the State was required and failed to prove this fact. Defendant construes the evidence in his...