State v. Simoneau

• Citation: 833 A.2d 1280
• Decision Date: 29 August 2003
• Docket Number: No. 01-007.,01-007.
• Parties: STATE of Vermont v. Patrick SIMONEAU.
• Court: United States State Supreme Court of Vermont

833 A.2d 1280

STATE of Vermont v. Patrick SIMONEAU.

No. 01-007.

Supreme Court of Vermont.

August 29, 2003.

Motion to Alter or Amend Denied October 6, 2003.

Lauren Bowerman, Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee State of Vermont.

William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney General, Montpelier, for Plaintiff-Appellee Vermont Criminal Justice Training Council.

Mark E. Furlan of Abatiell Associates, P.C., Rutland, for Defendant-Appellant.

Kevin J. Coyle and Joseph A. Farnham of McNeil, Leddy & Sheahan, Burlington, for Intervenor-Appellee Burlington Police Department.

Aileen L. Lachs of Mickenberg, Dunn, Kochman, Lachs & Smith, Burlington, for Intervenor-Appellee Burlington Police Officers' Association.

Present: AMESTOY, C.J., DOOLEY, MORSE¹, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

¶ 1. In this consolidated appeal, defendant Patrick Simoneau challenges the civil suspension of his motor vehicle license and the judgment entered on his conditional guilty plea to driving under the influence, fourth offense. The parties reserved the following issues for appeal: (1) did the trial court err in denying the initial defense motion to suppress and dismiss for lack of probable cause; (2) did the trial court err in denying defendant's motion to reopen his motion to suppress and dismiss based upon newly discovered evidence; and (3) did the trial court err in denying the defense access to training records of the charging officer as part of discovery?² We affirm.

¶ 2. On September 10, 2000, defendant was arrested for suspicion of driving under the influence. He was charged with driving under the influence, fourth offense, and the State also initiated civil suspension proceedings against him. After being arraigned, defendant moved to suppress the evidence against him and to dismiss the civil suspension proceedings, arguing that the officers lacked probable cause to arrest him. The trial court held a combined criminal and civil hearing on these motions on December 6, 2000.

¶ 3. At the hearing, Burlington Police Officer Daniel Merchand testified that on September 10, 2000, he and Officer Timothy Ahonen were sent to investigate an altercation at a Burlington residence. Upon arriving, the officers spoke with Allen Bouchard who had a cut lip and was intoxicated. Mr. Bouchard told Officer Merchand that he had been hanging out and drinking with friends and had gotten into a scuffle with "Patrick." While talking with Mr. Bouchard, Officer Merchand observed a man wearing plaid shorts and a light colored shirt exit through the back door of the residence. The officers were unable to locate "Patrick" and, finding Mr. Bouchard uncooperative, they departed.

¶ 4. While walking to their patrol cars, the officers observed a vehicle without its headlights on, backing into a parking space. Officer Merchand saw the driver, who was wearing a light colored shirt and plaid shorts, exit the vehicle and begin to walk unsteadily towards the residence where the altercation had taken place. Officer Merchand yelled "Patrick," and the individual looked toward him. When defendant was less than twenty-five feet from the back door of the apartment, Officer Ahonen attempted to stop him from reentering the building. When defendant resisted Officer Ahonen's actions, he was placed in handcuffs to allow the officers to "figure out what was going on."

¶ 5. While defendant was detained, Officer Merchand observed his watery, bloodshot eyes and detected a moderate odor of alcohol on his breath. Officer Merchand then advised defendant that he was under arrest for suspicion of driving under the influence.

¶ 6. Defense witness Kim Jarvis also testified at the hearing. She stated that she lived at the residence where the altercation occurred and had been present when the officers arrived. She observed the officers handcuffing defendant and stated that she had seen defendant driving shortly before his arrest.

¶ 7. At the close of the hearing, the court granted judgment for the State in the civil proceeding and denied defendant's motion to suppress. The court found that Officer Merchand had reasonable grounds to believe that defendant was operating a motor vehicle under the influence of intoxicating liquor and that his arrest was supported by probable cause. The court based its conclusions on Officer Merchand's testimony and found Ms. Jarvis's testimony consistent with Officer Merchand's observations. The court made the following factual findings: (1) Mr. Bouchard indicated to Officer Merchand that he had been drinking with defendant that night; (2) Officer Merchand observed defendant back his vehicle into the parking space; (3) Officer Merchand noticed defendant's "unsteady gait"; and (4) Officer Merchand yelled at defendant and got a response, which helped confirm his suspicion that this was indeed Patrick.

¶ 8. In January 2001, defendant filed notice that he was appealing the civil suspension decision. He then retained new counsel. In May 2001, defendant filed a "Renewed Motion to Suppress and Dismiss" in the criminal proceeding, and asked the court to reconvene a hearing based on new evidence. The new evidence consisted of testimony of Lisa Page, who was present the night of the incident but did not testify at the original suppression hearing; Allen Bouchard, who also did not testify at the suppression hearing; Kim Jarvis; and Guy Paradee, private investigator. The main thrust of the proffered testimony was that the officers could not have seen defendant operate a vehicle. Defendant moved to reopen the civil suspension proceeding on the same basis.

¶ 9. In May 2001, defendant served a subpoena on the Record Keeper at the Vermont Criminal Justice Training Council (Council). The Council runs the State Police Academy that Officer Merchand attended for training at the start of his service as a police officer. The subpoena requested that the Record Keeper attend a deposition and produce all records regarding Officer Merchand, including reports related to his training. The Council moved to quash the subpoena. In response, defendant asserted that the records would show that Officer Merchand had been dismissed from the Police Academy for lying and violation of the rules, and defendant wanted to use this information to impeach Officer Merchand when he testified.

¶ 10. In June 2001, after a hearing and in camera inspection of the pertinent Council records, the court granted the Council's motion to quash. The court rejected the State's assertion that the Vermont Access to Public Records statute barred disclosure of the records, but concluded that there was "no legitimate manner" in which defendant could use the records at a hearing or at trial. The court noted that defendant was seeking the Council's records for potential impeachment purposes, rather than exculpatory use. The court concluded that the documents contained information that was "collateral at best," and even assuming that the court would allow such an inquiry at trial, defendant could not use the records to impeach Officer Merchand under Rule 608(b) of the Vermont Rules of Evidence. At the hearing, the court also received Officer Ahonen's deposition testimony into evidence, without objection, and indicated that it would consider this testimony as evidence when considering defendant's motion to renew.

¶ 11. In July 2001, the court denied defendant's renewed motion to suppress and dismiss and his motion to reopen the civil proceeding. The court considered the deposition testimony of Officer Ahonen in reaching its conclusion and used its order to explain in greater detail the reasons supporting its initial denial of defendant's motion, including setting out findings of fact.

¶ 12. In August 2001, defendant entered a conditional guilty plea to driving under the influence, fourth offense, reserving four issues for appeal. We granted his motion to consolidate his civil and criminal appeals, and this appeal followed.

¶ 13. We first address defendant's claim that the trial court erred in denying his initial motion to suppress. Defendant argues that the court's essential findings of fact are not supported by the record and therefore its conclusion that the officers were warranted in conducting an investigatory stop is erroneous. Additionally, defendant maintains that the officers' use of physical force transformed the investigatory stop into an arrest for which the officers lacked probable cause.

¶ 14. Resolution of a motion to suppress involves a mixed question of fact and law. We must accept the trial court's findings of fact unless they are clearly erroneous. See State v. Lawrence, 2003 VT 68, ¶¶ 8-9, ___ Vt. ___, 834 A.2d 10 (mem.). The question of whether the facts as found met the proper standard to justify a stop is one of law. Id. A police officer is authorized to make an investigatory stop based on a reasonable and articulable suspicion of criminal activity. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Chapman, 173 Vt. 400, 402, 800 A.2d 446, 449 (2002). The officer must have more than an unparticularized suspicion or hunch of criminal activity, but needs considerably less than proof of wrongdoing by a preponderance of the evidence. See State v. Welch, 162 Vt. 635, 636, 650 A.2d 516, 517 (1994) (mem.); State v. Kindle, 170 Vt. 296, 298, 751 A.2d 757, 758 (2000). An officer may briefly detain a suspect to investigate the circumstances that provoke his suspicion as long as the scope of the detention is reasonably related to the justification for the stop and inquiry. Chapman, 173 Vt. at 402,800 A.2d at 449.

¶ 15. Defendant attacks a number of the court's findings of fact as unsupported by the evidence, particularly the findings that Mr. Bouchard told Officer Merchand that defendant had been drinking with him that night and that defendant's...