State v. Richard

• Decision Date: 29 July 2016
• Docket Number: No. 15–288.,15–288.
• Citation: 150 A.3d 1093
• Parties: STATE of Vermont v. Gilles RICHARD.
• Court: Vermont Supreme Court

150 A.3d 1093

STATE of Vermont

v.Gilles RICHARD.

No. 15–288.

Supreme Court of Vermont.

July 29, 2016.

David E. Tartter, Assistant Attorney General, and Gregory Nagurney, Deputy State's Attorney, Montpelier, for Plaintiff–Appellee.

David C. Sleigh and Kyle L. Hatt of Sleigh Law, St. Johnsbury, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

REIBER, C.J.

¶ 1. In this appeal of his conviction for driving under the influence (DUI), defendant alleges that the trial court made both factual and legal errors. First, he argues that several important factual findings by the court were clearly erroneous. Next, he argues that the court should have suppressed all evidence following his arrest as fruit of the poisonous tree because the trooper who arrested him did so without probable cause. Finally, he argues that the court should have suppressed his evidentiary breath test results because (1) the Vermont State Police trooper deterred him from seeking an independent blood test and (2) the trooper prevented him from seeking an independent blood test by jailing him. We affirm on all issues, upholding defendant's conviction.

¶ 2. The circumstances underlying this case occurred in Lyndonville on the night of August 8, 2014. While in his cruiser in a parking lot, the trooper observed defendant's truck come up the street, pass through a stop sign intersection without stopping, and then make a right turn. As the trooper began following defendant, he observed defendant drifting to the left and crossing the center of the road. After defendant made a second turn, the trooper activated his lights, signaling defendant to stop. Nevertheless, defendant continued driving for a short distance before finally pulling into his own driveway.

¶ 3. Defendant exited his car and began walking up the ramp to the front door of his home—despite the trooper's request that he stay with his truck—and the trooper stopped defendant as he attempted to enter his home. The trooper testified: "[W]hile I'm sitting there talking to him, I can smell intoxicants on his breath, his speech is slurred, you know, just not listening to anything I'm saying." The trooper pulled defendant away from the door and escorted him down the ramp to his cruiser. Defendant verbally resisted. According to the trooper, defendant kept telling the trooper "don't do this, don't do this," and each time the trooper told defendant "come on, let's go" defendant responded "nope, nope, nope." The trooper handcuffed defendant, searched him, and put him in the cruiser. Importantly, the trooper did not administer a field sobriety test or a preliminary blood alcohol test; he arrested defendant simply because he "believed he was under the influence of intoxicants."

¶ 4. At the police barracks, the trooper processed defendant for DUI. Before administering a breath test, the trooper told defendant that he would take him to the hospital for an independent blood test if he intentionally burped to delay the test. Defendant responded, "[E]xcuse me, sir, I'm going there anyway." After defendant completed the breath test, the trooper asked if he wanted a second test, and the defendant replied, "No. Hospital." The trooper then told defendant that the hospital would not administer an independent test unless he paid $75, by either cash or credit card. When defendant said that he did not have either, the trooper told him that he was willing to take defendant to the hospital, but the hospital would "turn [defendant] away ... you got to have the seventy-five bucks or they refuse to draw without it." Finally, when the trooper told defendant that he was willing to take defendant to the hospital but that defendant would not be able to obtain the test, defendant declined, saying, "Well, I don't have seventy-five bucks, so."

¶ 5. After processing, an incapacitation screener who worked as an "emergency services clinician and care bed team leader" at Northeast Kingdom Human Services came to the barracks to speak with defendant. The screener's task was to evaluate whether defendant should be put in protective custody or instead could be released. This evaluation was based not only on information provided by the trooper —such as defendant's breath test results—but also on defendant's appearance and answers to questions. Defendant refused to answer any of the screener's questions and instead requested that his wife pick him up. Based on this refusal, as well as by looking at defendant's eyes, the screener ultimately recommended that defendant be placed in custody because his "physical or mental functioning was substantially impaired from the consumption of alcohol and/or other drugs" and "[a]t the time there was not anybody there to take custody of him." The trooper then took defendant to the Saint Johnsbury correctional facility, so defendant never received an independent test.

¶ 6. After being charged with DUI, defendant moved to suppress all evidence following his arrest as fruit of the poisonous tree because the trooper who arrested him did so without probable cause. He also moved to suppress his breath test results because the trooper deterred him from seeking an independent test. The court held a two-day hearing on the motions, during which both the trooper and the screener testified. Following the trooper's testimony, defendant further moved to suppress his breath test results on another basis: that the trooper prevented him from seeking an independent test by jailing him. The court denied defendant's motions, defendant moved for reconsideration, and the court again denied the motions. Defendant then entered a conditional guilty plea to DUI, reserving his right to appeal the denial of the motions. The court entered a judgment of guilty and stayed defendant's sentence pending appeal.

I.

¶ 7. Defendant first argues that several important factual findings by the court were clearly erroneous. These findings were that (1) defendant "fail[ed] to maintain his lane" and was "unsteady as he exited his vehicle and as he headed up the ramp of his home"; (2) "The officer repeatedly offered to take Defendant to the hospital. Defendant declined and did not afterwards ask to be taken to the hospital"; (3) "any ‘interference’ [with defendant's right to an independent test] stemmed from the local hospital and its imposition of fees ... the officer's testimony was sufficient to establish his experience with the local hospital and the court sees no need to require the State to put on corroborating evidence"; and (4) the trooper placed defendant into protective custody because "if someone he is processing is difficult, he will not ‘cut him a break.’ "

¶ 8. We review findings of fact for clear error. Vt. Structural Steel Corp. v. S.D. Ireland Concrete Constr. Corp., 137 Vt. 371, 372, 406 A.2d 392, 393 (1979) ("Findings of fact shall not be set aside unless clearly erroneous"). This does not involve a weighing of the evidence. Highgate Assocs. v. Merryfield, 157 Vt. 313, 315, 597 A.2d 1280, 1281 (1991) ("A finding will not be disturbed merely because it is contradicted by substantial evidence"). Rather, we uphold the findings if any reasonable and credible evidence in the record supports them. Lawson v. Brown's Home Day Care Ctr., Inc., 2004 VT 61, ¶ 18, 177 Vt. 528, 861 A.2d 1048 (mem.) ("We will not disturb the trial court's factual findings unless they are clearly erroneous, meaning there is no credible evidence in the record to support them."); In re M.B., 2004 VT 58, ¶ 6, 177 Vt. 481, 857 A.2d 772 (mem.) ("The court's findings will stand if there is any reasonable and credible evidence to support them."). This is because "the trial court is in the unique position to assess the credibility of the witnesses and the weight of all the evidence presented."

Peckham v. Peckham, 149 Vt. 388, 390, 543 A.2d 267, 269 (1988) (quotation omitted). Without making our own factual findings, we may review both the dashcam video and the processing video to determine whether they contain evidence supporting the court's findings. In re M.K., 2015 VT 8, ¶ 15 n. *, 198 Vt. 233, 114 A.3d 107 ("[A]lthough we watched the video as part of the record of the proceedings below, our standard for reviewing the ... court's findings regarding the video are the same as with other evidence presented in the case.").

¶ 9. Here, the contested factual findings are not clearly erroneous because the evidence supports them. First, we address the finding that defendant "fail[ed] to maintain his lane" and was "unsteady" on his feet. Although it is true that the road did not have lanes, and so "lane" may not have been the best terminology for the court to use, defendant certainly failed to stay to his side of the road. And his movement after exiting the truck, his missing of his truck door with his hand, and his use of the railing while stepping up the ramp to his door all support the court's description that he was "unsteady" on his feet. It is not our place to second-guess this finding.

¶ 10. Second, we address the finding that "the officer repeatedly offered to take Defendant to the hospital. Defendant declined and did not afterwards ask to be taken to the hospital." On this point, defendant argues that the court omitted important statements by defendant suggesting that he did in fact want to go to the hospital: (1) that he was "going to [the hospital] anyway"; (2) his statements that he wanted his wife to pick him up; and (3) his final response that "[w]ell, I don't have the 75 bucks, so." Although these statements could be construed to imply that defendant wanted to go to the hospital, it was within the court's discretion in considering the evidence to determine that they do not.

¶ 11. Third, we address the finding that "any ‘interference’ [with defendant's right to an independent test] stemmed from the local hospital and its imposition of fees ... the officer's testimony was sufficient to establish his experience with the local hospital...