State v. Zumbo

• Decision Date: 08 November 1991
• Docket Number: No. 90-073,90-073
• Citation: 601 A.2d 986,157 Vt. 589
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Frank M. ZUMBO.

Page 986

601 A.2d 986

157 Vt. 589

STATE of Vermont v. Frank M. ZUMBO.

No. 90-073.

Supreme Court of Vermont.

Nov. 8, 1991.

Motion for Reargument Denied

December 13, 1991.

William Sorrell, Chittenden County State's Atty., Burlington, Gary S. Kessler, Supervising Appellate Prosecutor, Montpelier, and Geoffrey M. Coan, Student Intern, Vermont Law School (on the brief), for plaintiff-appellee.

Jane Watson and Robert W. Zeuner, Bauer, Gravel & Watson, Burlington, for defendant-appellant.

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

GIBSON, Justice.

Defendant Frank Zumbo appeals from his conviction for operating a motor vehicle while under the influence of intoxicating liquor, in violation of 23 V.S.A. § 1201(a)(2), arguing that (1) his constitutional and statutory rights were violated by the jury selection process, (2) the trial court abused its discretion when it denied his motion to suppress, (3) the court erred in allowing a police officer to testify that in his opinion defendant was under the influence of intoxicating liquor, (4) the court erred in failing to instruct the jury on the permissive inference under 23 V.S.A. § 1204(a)(1), and (5) the court erred in using the Storrs jury instruction. We affirm.

I.

Defendant first contends that Chittenden County's jury selection procedures violate his federal and Vermont constitutional rights, as well as his statutory rights. The instant case is one of forty-four previous interlocutory appeals presenting the same argument; forty-three cases, including the instant case, were dismissed on grounds that the interlocutory appeals had been improvidently granted. See State v. Jenne, 156 Vt. 283, ----, 591 A.2d 85, 88 (1991). The other case--Jenne--was addressed on the merits, and for the reasons expressed therein, we reject defendant's contention. See id. at ----, 591 A.2d at 88-91.

II.

A.

Defendant next argues that State v. Senecal, 145 Vt. 554, 558, 497 A.2d 349, 351 (1985), and its progeny require the trial judge to reevaluate the merits of a motion to suppress whenever a different judge had ruled on the motion prior to trial. Thus, in the instant case, defendant contends that, although no new facts were adduced at trial, the trial judge committed reversible error by failing to reconsider the motion to suppress, which had been denied before trial by Judge Cashman following an evidentiary hearing. As we stated in Senecal, pretrial rulings are tentative and subject to revision, id., but Senecal and its progeny do not require the trial judge to reevaluate all decisions made by a prior judge. Where no new facts are adduced at trial, it would be counterproductive and a waste of judicial resources to require redetermination of a pretrial ruling by the trial judge. State v. Bruno, 157 Vt. 6, ---- n. 1, 595 A.2d 272, 274 n. 1 (1991) (for reasons of judicial economy, "trial court reconsideration of pretrial suppression rulings is to be the exception, not the rule"). We shall not require a trial judge to reconsider a pretrial decision under such circumstances. Accordingly, the trial judge did not abuse his discretion when he declined to reconsider the pretrial decision.

B.

Defendant also contends that the motion to suppress was erroneously denied by Judge Cashman. In response to questions from a police officer, defendant made a series of incriminating statements while he was in his vehicle and during the administration of a field sobriety test. He argues that, pursuant to Chapter I, Article 10 of the Vermont Constitution, Miranda warnings are required at all roadside stops or, at the latest, once the police officer has probable cause to believe that the individual has committed or is in the process of committing a crime. He further contends that the officer had probable cause--and should have given him Miranda warnings--after the officer had noted his erratic driving, watery and bloodshot eyes, slurred speech, and the odor of intoxicants.

Under the federal constitution, the suppression court correctly determined that defendant was not "in custody" at the time he made his incriminating statements. See Pennsylvania v. Bruder, 488 U.S. 9, 9-11, 109 S.Ct. 205, 205-07, 102 L.Ed.2d 172 (1988); Berkemer v. McCarty, 468 U.S. 420, 437-39, 104 S.Ct. 3138, 3148-50, 82 L.Ed.2d 317 (1984); State v. Lancto, 155 Vt. 168, 170-72, 582 A.2d 448, 448-50 (1990). Although we have explicitly adopted Miranda under Chapter I, Article 10, State v. Brunelle, 148 Vt. 347, 355 n. 11, 534 A.2d 198, 204 n. 11 (1987), we have not had occasion to address whether the Vermont Constitution requires Miranda warnings in circumstances where the federal constitution would not. Cf. In re E.T.C., 141 Vt. 375, 378, 449 A.2d 937, 939 (1982) (stricter requirements under Vermont Constitution for juvenile's waiver of Miranda rights). Defendant bears the burden of providing an explanation of how or why the Vermont Constitution provides greater protection than the federal constitution. State v. Gleason, 154 Vt. 205, 212, 576 A.2d 1246, 1250 (1990); State v. Ryea, 153 Vt. 451, 454, 571 A.2d 674, 675 (1990).

In support of his proposed rule, defendant strenuously contends that one does not reasonably feel free to leave an ordinary traffic stop. This argument, however, was answered in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Justice Marshall rejected the argument on grounds that the ordinary traffic stop is a temporary and brief detention that is exposed to public view and thus less police-dominated than the kinds of interrogation at issue in Miranda. Id. at 437-39, 104 S.Ct. at 3148-50. Defendant fails to provide a substantive analysis as to why the Vermont Constitution should provide a different answer for his argument than the federal constitution. See State v. Jewett, 146 Vt. 221, 222, 500 A.2d 233, 234 (1985). Nor are we convinced by defendant's lengthy quotation from Commonwealth v. Bruder, 365 Pa.Super. 106, 111-12, 528 A.2d 1385, 1387-88 (1987), which was reversed by the United States Supreme Court in Pennsylvania v. Bruder, 488 U.S. 9, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988). Although Commonwealth v. Bruder refers to a "Pennsylvania rule," subsequent Pennsylvania cases suggest that the "rule" is similar if not identical to the federal rule. See, e.g., Commonwealth v. Gonzalez, 519 Pa. 116, 124, 546 A.2d 26, 29-30 (1988); Commonwealth v. Toanone, 381 Pa.Super. 336, 347, 553 A.2d 998, 1001-03 (1989); Commonwealth v. Ellis, 379 Pa.Super. 337, 350-59, 549 A.2d 1323, 1329-34 (1988). We note that defendant has made no argument based upon the Vermont Constitution's text or its history. On this record, we are not persuaded that Chapter I, Article 10 of the Vermont Constitution requires Miranda warnings at an ordinary traffic stop.

III.

Defendant argues that the trial court erred by allowing the police officer to testify that, in his opinion, defendant was slightly to moderately intoxicated, on grounds that the testimony goes to an ultimate conclusion of law. We have previously addressed this argument and have held nearly identical testimony to be admissible where a sufficient foundation was established. See State v. LeBeau, 144 Vt. 315, 318, 476 A.2d 128, 130 (1984) (testimony that defendant was under the influence of intoxicants held admissible); State v. Norton, 134 Vt. 100, 103, 353 A.2d 324, 325 (1976) (same); see also Reporter's Notes, V.R.E. 704 (stating that Norton is consistent with V.R.E. 704, and "testimony should not be excluded solely because it coincided with an ultimate issue of fact where it was an otherwise helpful expression of opinion"). Defendant's reliance on Riess v. A.O. Smith Corp., 150 Vt. 527, 556 A.2d 68 (1988), is misplaced. Contrary to defendant's contention, Riess, which is grounded in part upon Norton, did not change the rule enunciated in Norton and LeBeau. Instead, Riess held that the questions asked by counsel in that negligence action were improper because they, in effect, told the jury "what conclusion to reach" and were thus prejudicial, requiring reversal. Id. at 532-33, 556 A.2d at 72. There was no such flaw in this case, and no abuse on the part of the trial court in allowing the evidence.

IV.

Defendant also argues that the trial court erred by failing to instruct the jury that if defendant's blood-alcohol content was found to be 0.05% or less, then the jury could presume that defendant was not under the influence of intoxicating liquor. During processing, defendant gave a breath sample to the officer. Defendant's expert testified that, if the testimony of defendant's witnesses was accurate, defendant's blood-alcohol content would have been less than 0.05%. Neither party introduced and related back defendant's test results. For the following reasons, we hold that defendant was not entitled to the requested instruction under § 1204(a)(1), as it then read, ¹ because the results of his blood-alcohol test were not introduced into evidence and related back to the time of operation.

First, the plain meaning of the statutory language required that the test results be in evidence. Title 23 V.S.A. § 1204(a)(1) provided:

(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while operating, attempting to operate or in actual physical control of a vehicle on a highway, the amount of alcohol in the person's blood or breath as shown by analysis of the person's blood or breath shall give rise to the following permissive inferences:

(1) If there was at that time 0.05 percent or less by weight of alcohol in the person's blood or breath, it shall be presumed that the person was not under the influence of intoxicating liquor.

(Emphasis added.) In stating that an "analysis of the person's blood or breath shall give rise" to certain inferences, the statutory language plainly contemplated that a test of a blood or breath sample be evaluated, and the result made...