Vielot v. State
| Decision Date | 24 November 2015 |
| Docket Number | No. 2132, Sept. Term, 2013.,2132, Sept. Term, 2013. |
| Citation | 126 A.3d 143,225 Md.App. 492 |
| Parties | Yuri Marie Francois VIELOT, Jr. v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Jeffrey M. Ross & Allison P. Brasseaux (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for Appellant.
Susannah E. Prucka (Douglas F. Gansler, Attorney General, on the brief) Baltimore, MD, for Appellee.
Panel: WOODWARD, NAZARIAN, and REED, JJ.
Appellant, Yuri Marie Francois Vielot, Jr., was tried and convicted by a jury on September 23 and 24, 2013, in the Circuit Court for Charles County of two counts of manslaughter by motor vehicle in violation of Md.Code Ann. (2011 Supp.), Criminal Law Article ("CL") § 2–209(b). The circuit court sentenced appellant to concurrent sentences of ten years with eighteen months suspended, and five years' probation. Appellant now appeals his convictions and presents the following questions for our review:
For the reasons set forth below, we affirm the judgments of the circuit court.
The first trial of this case took place on July 16, 2012, but the jury failed to return a verdict. A second trial was held on September 23, 2013. This time, the jury convicted appellant of two counts of automobile manslaughter.
Appellant worked the night shift at HH Gregg. Generally, he would leave for work at 6:00 p.m., work until 6:00 a.m. the next day, and return home at 7:00 a.m. Appellant's wife testified that he was in the habit of sleeping all day and then getting up around 6:00 p.m. to go to work.
On October 21, 2010, at approximately 1:10 p.m., appellant was driving his 2004 Volkswagen SUV from TGI Friday's along Maryland 228 to bring his wife lunch at her place of employment. Appellant fell asleep at the wheel, traveled off the roadway onto the median, and struck a sign and three men who were working by the side of the road. The three men were Leonel Bergama, Erick Alvarado, and Marlon Lorenzo.
Alvarado and Lorenzo died from injuries caused by the accident. Berganza survived. The men, who worked as landscapers for Colossal Construction, were on the median cutting the grass and picking up garbage. It is undisputed that they were all wearing the proper safety gear.
Corporal Steven Van Bennekum, accident reconstructionist for the Maryland State Police Crash Team, testified to what happened at the accident scene. In his report, he concluded that the distance between Friday's and the scene of the accident is approximately five miles and it would take approximately seven minutes to get there driving the speed limit, which was 55 miles per hour. Corporal Van Bennekum testified that the speed analysis confirmed that appellant drove at approximately 42–50 miles per hour. He also confirmed that appellant was not under the influence of drugs or alcohol at the time of the accident. At trial, he testified that the grass at the accident scene had signs of rolling resistance marks up until the sign that appellant hit. Rolling resistance marks show that the vehicle was not braking. Corporal Van Bennekum testified that the marks changed from rolling resistance marks to skid marks after the sign. The skid marks indicate the point at which appellant started to brake.
The evidence also demonstrated that appellant told both a State Trooper and the physician's assistant at the hospital that he slept for 2 hours the night before the accident. In addition, Doreen Pavese testified for the State at the first trial that appellant failed to maintain his lane for approximately one half to one mile before the accident. Although Ms. Pavese did not testify at the second trial due to injuries she sustained in an unrelated car accident, her testimony from the first trial was nevertheless admitted under the former testimony exception to the hearsay rule.
Appellant contends that the trial court erred in applying Md. Rule 5–804(a)(4) when it concluded that Doreen Pavese was unavailable for the purposes of admitting her former testimony. Appellant argues that the State's evidence did not establish that Ms. Pavese was unable to travel, but only that she could not drive. Appellant asserts that because Ms. Pavese was able to travel within New Jersey to physical therapy, she also could have travelled interstate. Appellant argues that "scores of witnesses, ranging from children, to the elderly, to the physically challenged, are unable to drive, yet they appear, or are made to appear, for the purposes of testifying."
Appellant agrees that the claim of unavailability is reviewed by this Court under the abuse of discretion standard, but he nevertheless asserts that the trial court erred in the "legal conclusion" that Ms. Pavese was unavailable.
Appellant also contends that because Ms. Pavese was a key witness to the State and her former testimony contained inconsistencies, he had the right to cross examine her under Md. Rule 5–804(b). Appellant points out that when State Trooper Zimmerman asked Ms. Pavese at the accident scene to write down what she saw, she wrote that she observed appellant drifting into her lane and that the next thing she saw was his vehicle going onto the median, striking a sign, and then hitting two people. Appellant contends that this written statement is inconsistent with Ms. Pavese's former testimony, in which she stated that she observed appellant drifting between lanes for one half to one mile before the accident.
Lastly, appellant asserts that the claim of unavailability under Md. Rule 5–804(a)(5) is not satisfied because the State did not take any steps to procure the declarant's attendance as required by the rule.
The State responds that the trial court correctly admitted Ms. Pavese's former testimony under Md. Rule 5–804(a)(4) because her unavailability resulted from being in an unrelated car accident which impaired her arm's mobility to such an extent that she could not travel. The State provided the trial court with a note from her doctor and a disability certificate that indicated that she could not drive or work.
The State also contends that the note from Ms. Pavese's doctor, together with the disability certificate, proved that she did not willfully fail to appear in court, and therefore eliminated any need to obtain a body attachment or procure her by other legal means.
Trial judges are typically afforded "broad discretion in the conduct of trials in such areas as the reception of evidence." Void v. State, 325 Md. 386, 393, 601 A.2d 124 (1992) (quoting McCray v. State, 305 Md. 126, 133, 501 A.2d 856 (1985) ). Under this standard, we normally "extend the trial court great deference in determining the admissibility of evidence and will reverse only if the court abused its discretion." Hopkins v. State, 352 Md. 146, 158, 721 A.2d 231 (1998) (citation omitted).
We apply a different standard, however, when it comes to hearsay evidence. The Court of Appeals has held that "[w]hether evidence is hearsay is an issue of law reviewed de novo. " Gordon v. State, 431 Md. 527, 536, 66 A.3d 647 (2013) (quoting Bernadyn v. State, 390 Md. 1, 8, 887 A.2d 602 (2005) ). A trial court has "no discretion to admit hearsay in the absence of a provision providing for its admissibility." Id. Therefore, "[h]earsay ... must be excluded as evidence at trial, unless it falls within an exception to the hearsay rule." Gordon, 431 Md. at 535, 66 A.3d 647 (quoting Bernadyn, 390 Md. at 8, 887 A.2d 602 ). Yet, when reviewing what usually is the second step of any hearsay analysis—does the hearsay fall under any of the exceptions to the hearsay rule?—we apply a de novo standard to the trial court's legal findings and a deferential standard to any factual findings that might be required:
A hearsay ruling may involve several layers of analysis. Proponents of the evidence challenged on hearsay grounds usually argue (1) that the evidence at issue is not hearsay, and even if it is, (2) that it is nevertheless admissible. The first inquiry is legal in nature. But the second issue may require the trial court to make both factual and legal findings. For instance, in determining whether evidence is admissible under the excited utterance exception to the hearsay rule, ... the trial court looks into ‘the declarant's subjective state of mind’ to determine whether ‘under all the circumstances, [he is] still excited or upset to that degree.’ It considers such factors, as, for example, how much time has passed since the event, whether the statement was spontaneous or prompted, and the nature of the statement, such as whether it was self-serving. Such factual determinations require deference from appellate courts.
Id. at 536–37, 66 A.3d 647 (citation omitted).
We hold that the trial court did not abuse its discretion in finding that Ms. Pavese was unavailable for purposes of admitting her former testimony under Md. Rule 5–804(b)(1). Before the court can admit former testimony under Md. Rule 5–804(b)(1), the court must find the declarant unavailable. Md. Rule 5–804(b) (). Under Md. Rule 5–804(a)(4) and (5), a witness is unavailable when:
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