State v. Santelli, 91-531

• Decision Date: 18 December 1992
• Docket Number: No. 91-531,91-531
• Citation: 159 Vt. 442,621 A.2d 222
• Parties: STATE of Vermont v. Arthur SANTELLI.
• Court: Vermont Supreme Court

Page 222

621 A.2d 222

159 Vt. 442

STATE of Vermont v. Arthur SANTELLI.

No. 91-531.

Supreme Court of Vermont.

Dec. 18, 1992.

Jeffrey L. Amestoy, Atty. Gen., and David E. Tartter, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

E.M. Allen, Defender Gen., and Kerry B. DeWolfe and William A. Nelson, Appellate Attys., Montpelier, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

JOHNSON, Justice.

Defendant, who had refused to submit to an evidentiary breath test, was convicted by a jury of driving under the influence of intoxicating liquor. He appeals on two grounds. First, he contends that the trial court erred by denying his request to remove for cause a member of the jury panel who expressed a fixed belief that anyone who refused to submit to a breath test was guilty. Second, defendant argues that the trial court should have permitted defendant to testify as to why he refused to take a breath test, rather than excluding his proposed testimony as impermissible hearsay. We agree with both arguments and reverse and remand.

On November 9, 1990, defendant, Arthur Santelli, was driving home from his brother's house when he was involved in an accident with another vehicle. The police officers who responded to the accident charged defendant with driving under the influence of intoxicating liquor (DUI) because he smelled of alcohol. Defendant admitted that he had consumed four beers, but claimed that he was not impaired because of the length of time over which he had consumed them. The police administered sobriety tests, two of which were dexterity tests that defendant explained to the officer he would be unable to perform due to recent hip surgery. Defendant refused to submit to a breath test and informed the officer that his refusal was based upon information he learned from police officer friends that the test was unreliable.

During voir dire, the jury panel was questioned about its ability to find defendant not guilty of DUI charges despite his refusal to submit to a breath test. The following exchange took place between the defense attorney and one of the prospective jurors MR. HOWARD: [W]ould you feel that if you heard a person didn't take the [breath] test, that that would make them guilty automatically to you?

JUROR: Yes, I would feel that.

....

MR. HOWARD: Would it make any difference to you if the Judge instructed you that that is the law, that a person can simply decline the test for any personal reason or whatever? He doesn't trust them, doesn't like them, whatever, would that overcome it, or would you just rely on the ...

JUROR: I feel that the person should take the test.

MR. HOWARD: And if he didn't, that would ... [...] ... that would make you feel he was under the influence if he didn't.

JUROR: Right.

....

MR. HOWARD: Could you conceive ... of someone not taking the test for a reason that had nothing to do with being under the influence?

JUROR: No, I think it is essential that they take the test.

MR. HOWARD: If you heard any explanation from a person as to why he didn't take the test, that it had nothing to do with being under the influence, would you listen to that type of explanation?

JUROR: No.

MR. HOWARD: Okay. You just think they have got to do it?

JUROR: It is part of the law.

Defendant moved to strike the juror for cause, but the motion was denied, forcing defendant to use a peremptory challenge. Defendant then used his remaining five peremptory challenges to strike other prospective jurors not challengeable for cause. Defendant sought to remove a final prospective juror but was unsuccessful as his peremptory challenges had been exhausted.

It is reversible error to "force a defendant to use his last peremptory challenge to exclude a juror challengeable for cause," where the defendant indicates his desire to peremptorily challenge another juror. State v. Holden, 136 Vt. 158, 161, 385 A.2d 1092, 1094 (1978). In State v. Doleszny, 146 Vt. 621, 622, 508 A.2d 693, 694 (1986), we held that it was not necessary for the defense to use its last peremptory challenge to strike a juror who should have been struck for cause. The claim of error is preserved if defendant subsequently exhausts all peremptory challenges and has none left to peremptorily challenge an additional juror. Since defendant did so in this case, he is entitled to a new trial if the court erred in failing to exclude a juror for cause.

Where a prospective juror shows an inability to be impartial during voir dire, that juror must be removed for cause. Id. at 623, 508 A.2d at 694; see also Jones v. Shea, 148 Vt. 307, 309, 532 A.2d 571, 573 (1987) (potential juror with "fixed opinion, bias or prejudice" is subject to challenge for cause). Here, the prospective juror stated outright that a refusal to take a breath test was proof positive of defendant's guilt and that he would not even listen to any explanation given by defendant for his refusal. Since we have held that jurors must be excluded for cause for less definite statements of bias than this, State v. McQuesten, 151 Vt. 267, 268-69, 559 A.2d 685, 685-86 (1989) (and cases cited therein), it was clear error not to exclude this juror.

Even the State does not contest that the juror should have been excluded for cause. Rather, it argues that the error should not result in a new trial because defendant has not claimed that any member of the jury was...