State v. Roy

• Decision Date: 13 January 1989
• Docket Number: No. 87-536,87-536
• Citation: 557 A.2d 884,151 Vt. 17
• Parties: STATE of Vermont v. James R. ROY.
• Court: Vermont Supreme Court

Page 884

557 A.2d 884

151 Vt. 17

STATE of Vermont v. James R. ROY.

No. 87-536.

Supreme Court of Vermont.

Jan. 13, 1989.

Shelley A. Hill, Windsor County State's Atty., and Ruth E. Clough, Law Clerk (on the brief), White River Junction, for plaintiff-appellee.

Walter M. Morris, Jr., Defender General and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.

Before ALLEN, C.J., PECK, DOOLEY and MORSE, JJ., and KEYSER, J. (Ret.), Specially Assigned.

DOOLEY, Justice.

Defendant appeals his conviction of simple assault on a police officer, 13 V.S.A. §§ 1023(a) and 1028, attempting to elude a police officer, 23 V.S.A. § 1133, and reckless operation of an automobile, 23 V.S.A. § 1091. Defendant urges numerous grounds for reversal: (1) that the jury charge was in error because it failed to state that knowledge that the victim was a police officer is an element of the crime of simple assault on a law enforcement officer; (2) that the jury charge was in error because it failed to state that scienter is an element of the crime of eluding a police officer; (3) that the counts of the information alleging these two elements were defective because they did not allege this scienter element; ¹ (4) that evidence offered to prove that the alleged victim was the aggressor was erroneously excluded; (5) that the exclusion of a state police personnel file containing potentially relevant and exculpatory materials was in error, and; (6) that the delay between arrest and trial denied him a speedy trial. We reject each of these claims and affirm.

Defendant's trouble began on January 26, 1987 when he finished his work for the day, bought a fifth of Jack Daniels, took it home, and, according to his own testimony, drank a bit more than half of it. Defendant then made a questionable decision, given the quantity of whiskey he had consumed, to go to the grocery store. At about 10:00 p.m. a Randolph police officer saw a red pickup (defendant's) going the wrong way on a one-way street in Randolph. The officer followed the truck onto a two-way road and observed that the truck was consistently in the center of the road or completely in the left lane. The officer flashed his driving lights and put on his siren and flashing blue lights in order to signal defendant to pull over. None of these signals produced results. Defendant testified that although he saw the flashing blue light of the police cruiser he did not stop because he was afraid of being picked up for driving under the influence of alcohol.

A state trooper was called into the chase, and he created a roadblock. Defendant ignored the roadblock although he did observe the flashing blue lights of the cruiser at the roadblock. Eventually, defendant's truck was forced off the road by the state police, where it became lodged in a snowbank.

When the officers confronted defendant, he was violent and aggressive. He claims that he was belligerent because of his diminished capacity and that he did not know that he was dealing with police officers and was being arrested. He also claims that one of the officers was the aggressor and he was defending himself against that aggression. The State claims that the testimony shows clearly that defendant knew he was dealing with the police. This factual dispute went to the jury, which found defendant guilty of one count each of assaulting a law enforcement officer, attempting to elude a law enforcement officer, and reckless driving.

I.

Defendant's first argument is based on the jury charge. The trial court conducted a lengthy and thorough jury charge conference, at which counsel for both sides actively participated. The charge tracked the statutory elements of simple assault and simple assault against a police officer. ² In addition, the trial judge charged "[a] private citizen may not use force to resist arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the performance of his duties." (Emphasis added). Near the conclusion of the simple assault and assault on a law enforcement officer charge, the judge stated that "[i]n the event the State has not proved each of these elements beyond a reasonable doubt as to counts one and three, then you must find the Defendant not guilty of assault on a law enforcement officer." There was no objection to the charge by defendant.

There was, however, a request for clarification of the charge by the jury. In response to the jury's question "[p]lease explain, again, assault and/or simple assault," the trial court reiterated the elements of each offense. The following colloquy occurred between the trial judge and the jury foreman:

THE COURT:

....

That's the difference between simple assault on the one hand and assault on a law enforcement officer on the other hand. Okay?

FOREPERSON: We're concerned with the part about performing a lawful duty. Would you explain that better?

THE COURT: All right. I can read that to you.

"Performing a lawful duty" means carrying out the duties required by his office in the administration or the execution of the law. A law enforcement officer may arrest a person when the officer has probable cause to believe a crime has been committed in his presence.

....

... A private citizen may [not] use force to resist arrest by one he knows or has good reason to believe is an authorized police officer engaged in the performance of his duties....

Defendant argues that the charge was fatally defective because it omitted an element of the offense found in this Court's decision in State v. Galvin, 147 Vt. 215, 514 A.2d 705 (1986). In Galvin, this Court held that the charge of simple assault on a police officer included as an element that the defendant knew or had good reason to believe that the victim was a law enforcement officer. 147 Vt. at 217-18, 514 A.2d at 707; see also State v. Peters, 141 Vt. 341, 348, 450 A.2d 332, 336 (1982). Before we analyze this claim in light of the charge that the trial court did give, we must look at the standard of review for such a claim.

As noted above, no objection was made to the charge below. V.R.Cr.P. 30 provides that a party may not assign as error "any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict...." The waiver rule of Criminal Rule 30 is subject to the plain error exception of V.R.Cr.P. 52(b). That rule allows this Court to consider "[p]lain errors or defects affecting substantial rights" even though there was no objection below.

We are first confronted with a claim that the omission of an essential element of the offense from the charge to the jury is automatically plain error warranting reversal. A number of states have adopted a position close to that advocated here. See, e.g., State v. Dana, 517 A.2d 719, 721 (Me.1986); Commonwealth v. Thomas, 401 Mass. 109, 117-18, 514 N.E.2d 1309, 1315 (1987). Many of the federal circuit courts of appeal have adopted a similar rule. See, e.g., United States v. Kerley, 838 F.2d 932, 938 (7th Cir.1988); United 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 circumstances where the trial court informed the jury that an element had been conceded or tacitly admitted by the defendant. A per se rule is justified in such circumstances because the jury is specifically instructed not to consider the element involved. Here, it is possible that other aspects of the charge will cover the omission at least in part. As the United States Supreme Court pointed out in Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 1737, 52 L.Ed.2d 203 (1977): "An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law."

We also note that when we have examined cases where there is no objection below, we have consistently required a showing of plain error. This Court has not found that some errors are plain per se. Most recently in State v. Duff, 150 Vt. 329, 554 A.2d 214 (1988), we decided a case where the defendant admitted committing a homicide but argued that he was guilty only of voluntary manslaughter by virtue of diminished capacity. The jury convicted the defendant of murder after the trial judge misdefined the elements of the crime of voluntary manslaughter by adding an element that was not part of the crime. This Court analyzed the charge error under the traditional plain error test although the practical effect of the error was to omit or misdefine an essential element of murder, the crime of which the defendant was convicted.

We believe it would be bad policy to create a category of errors which are plain per se. As the Supreme Court of Rhode Island noted recently in response to a similar argument, such a rule would apply its analogue to V.R.Cr.P. 52(b) "in such a way as to destroy Rule 30." State v. Williams, 432 A.2d 667, 670 (R.I.1981); see also State v. Ballard, 439 A.2d 1375, 1388-89 (R.I.1982) (same). Further, such a rule would reduce any incentive for trial counsel to object to errors that involve omissions of essential elements of the crime. Given our clear precedent in Galvin, there is no question that the trial court would have corrected the asserted error if it were brought to its attention at the time of the charge. See generally Robinson, A Proposal for Limiting the Duty of the Trial Judge to Instruct the Jury Sua Sponte, 11 San Diego L.Rev. 325 (1974).

We thus adopt the familiar plain error standard for omissions of elements of the offense from the charge to the jury. In State v. Duff, supra, we stated this standard as follows:

This is one of those "rare and extraordinary case[s]" ... where "the error in the trial court's charge so affects the substantial rights of this [defendant] t...