State v. Bruno

595 A.2d 272, 157 Vt. 6, 1991 Vt. LEXIS 116

• Court: Supreme Court of Vermont
• Decided: June 7, 1991
• Docket: 90-014
• Status: Published

Opinions

Allen, C.J.

Defendant, Louis Bruno, Jr., appeals from his DUI conviction, alleging error in the trial court’s denial of his motion to suppress. We affirm.

On June 30, 1989, defendant was arrested for DUI and following arraignment filed a motion to suppress on the ground that there was not a reasonable basis for the arresting officer’s initial stop. At the hearing on the suppression motion, the arresting officer testified that he had observed defendant’s vehicle drifting in its lane on Pine Street, that defendant had pulled into a dead end behind Burlington Electric Department and briefly parked with the headlights off, and that defendant had operated his vehicle for a period without its headlights on. The officer further testified that he stopped the vehicle because it had no headlights on. The defendant denied that his was the car that the arresting officer had observed drifting on Pine Street and denied operating the vehicle with the headlights off.

The motion judge was “unable to find” that defendant was drifting in his lane and whether he had turned his lights back on when he left the Burlington Electric Department premises. The motion judge denied defendant’s motion “solely on the factual basis” that defendant, alone in his car, had pulled into and briefly parked in an “apparently useless dead end.”

At the outset of trial defendant renewed his motion to suppress, asserting that there was no reasonable basis to stop and that the motion judge had erred. The error, defendant argued, was that the officer had limited his subjective basis for stopping defendant to defendant’s headlights being off. Thus, in the absence of a finding that defendant’s headlights were off, defendant’s motion must be sustained. To uphold the stop solely on the basis of defendant’s act of pulling into a dead end and parking was to impermissibly substitute the court’s own basis for the officer’s. The trial judge reserved decision and advised objection at the appropriate time during trial. At the close of the State’s case, defendant again renewed his motion, which the trial judge denied. The trial judge found that there were sufficient articulable facts to justify the officer’s initial stop of defendant.

A defendant does not have a vested right in an erroneous pretrial ruling. A ruling on a pretrial motion to suppress “is tentative only, and subject to revision at the trial.” State v. Blondin, 128 Vt. 613, 617, 270 A.2d 165, 167 (1970); see State v. Senecal, 145 Vt. 554, 558, 497 A.2d 349, 351 (1985). The rationale behind this holding is manifest. The trial holds the potential for curing error. In holding that pretrial rulings are not necessarily binding on the trial court, we stated that

[i]f the rule were otherwise a trial judge would be tied to obvious errors even when, as here, the earlier rulings were made by a different judge. The trial judge would moreover be rendered helpless in the face of additional evidence or other considerations developing during trial of the case which might otherwise dictate a modification or a reversal of the preliminary rulings.

State v. Baldwin, 140 Vt. 501, 514, 438 A.2d 1135, 1142 (1981). In furtherance of both protection of defendant’s rights and promotion of judicial economy, it is preferable for a trial court, where serious grounds arise as to the correctness of the pretrial ruling, to receive evidence and reconsider the ruling.¹ Such reconsideration accedes to defendant’s request that the pretrial ruling be reconsidered. Further, such reconsideration resolves what is often a factual question before a tribunal which is much more capable of making factual determinations than an appellate court. See Blondin, 128 Vt. at 616, 270 A.2d at 166 (unavailability of interlocutory appeal from pretrial suppression motion especially salutary “where the admissibility of evidence depends on factual contentions, more appropriately resolved during the course of a plenary trial”).

In the instant case defendant was saddled with what he thought to be an erroneous pretrial ruling on his motion to suppress. Defendant renewed his motion before the trial judge. Having listened to defendant’s argument that the motion judge impermissibly substituted his own basis for the officer’s, and that the officer’s basis was not factually shown, the trial judge stated: “we’ll leave it up to you [defendant] to move for your motion again. The Court would like to hear some testimony first.” The trial judge then heard the direct and cross-examination of the arresting officer,² and denied defendant’s motion to suppress when it was renewed at the close of the State’s case. In his summation, the trial judge reiterated that “[t]here was articulable facts that the officer did have to suspect a possible DWI when he first made the initial stop.” Dissatisfied with the ruling on the renewed motion, defendant asserts on appeal that “the trial court improperly denied Defendant’s motion to suppress.” Yet beyond this opening assertion, defendant’s brief relies for its grounds of error exclusively upon the pretrial ruling.³

Defendant, in focusing his appeal solely on alleged error in the pretrial suppression ruling, overlooks the reason behind the rule requiring renewed objection. As outlined above, the basis for requiring defendant’s objection at trial and the basis for the trial court’s reconsideration is the potential for correcting such pretrial error. Having asked the trial court to reconsider his motion to suppress because of claimed error in the pretrial suppression ruling, and having received such reconsideration, defendant on appeal cannot ignore the effect of this reconsideration.⁴ Where the trial court acceded to defendant’s request to reconsider the motion to suppress and reached its own determination, this determination was a ruling on the motion. For defendant to succeed on appeal where, as here, the trial court’s determination was adverse to him, he must as a threshold matter show error in this determination.

Defendant having failed to point us to any particularized error in the trial court’s ruling on the motion to suppress, and finding none ourselves, defendant’s appeal does not succeed. On the testimony before it, it cannot be said that the trial court erred in its finding that the officer articulated sufficient facts to justify the stop. “[T]o justify a legal investigatory stop ... a police officer need have no more than an articulable and reasonable suspicion that a motor vehicle violation is taking place.” State v. Boardman, 148 Vt. 229, 231, 531 A.2d 599, 601 (1987). The trial court heard the officer testify that defendant swerved and drifted in his lane, pulled in behind Burlington Electric Department and briefly parked, and then subsequently operated his vehicle for a period with its headlights off. We agree with the trial court that these facts are sufficient to give rise to a reasonable and articulable suspicion on the part of the officer that the defendant was operating his motor vehicle while intoxicated.⁵

Affirmed.

1 We emphasize that trial court reconsideration of pretrial suppression rulings is to be the exception, not the rule. A contrary emphasis would have a completely opposite and devastating effect on judicial economy. As we stated in Baldwin, 140 Vt. at 514, 438 A.2d at 1142, “caution should be the guiding principle in acting on pretrial motions renewed at, during, or after trial.”

2 The trial judge heard the officer testify that defendant was “drifting and swaying back and forth in the lane.” He heard the officer rebut defendant’s attorney’s attempt to place the swerving at a place where the road itself swerves. He heard the officer state that “there should have been no reason for him [defendant] to be down there [behind Burlington Electric Department].” He heard the following colloquy:

Q. Now as part of your routine at two o’clock in the morning you would be monitoring what might be termed a suspicious vehicle?

A. That’s correct.

Q. So you decided to monitor this vehicle who had kind of backed into a parking area and turned its lights off?

A. Correct.

He also heard:

Q. Now officer, regardless of the lights, if you had seen the vehicle swaying in its own lane of traffic, driving into the Burlington Electric parking lot for a few minutes at that hour in the morning and then driving out onto Pine Street, would you have stopped the vehicle?

A. Eventually, yes. I would have followed it for a little longer and then eventually stopped it.

3 Defendant urges on appeal basically the same argument he presented to the trial judge: “[t]he court erred when it substituted its own justification for the stop in place of the police officer’s justification.” Defendant grounds his appeal on the ruling by the motion judge. As defendant’s brief states: “The motion court’s actions appear to be contrary to the letter and spirit of Terry v. Ohio. . . . The motion court’s ruling, in effect, means that the court will uphold as valid a stop as long as there is some justification even though it is not the justification the police officer had.” (Emphasis added.) That defendant’s argument is based on what occurred before the motion judge is further evidenced by the fact that defendant’s brief refers solely to the motion transcript.

4 Defendant seems to consider his objection at trial to the admission of evidence sought to be suppressed as a mere formality necessary to preserve appellate review. Yet, as stated above, there is reason behind the rule. Defendant cannot simply rely, in his appeal, on pretrial error which he has asked the trial judge to reconsider and correct, without assessing the effect of this reconsideration. To do so would be tantamount to treating the trial judge’s reconsideration as a “useless performance.” Cf. State v. Connolly, 133 Vt. 565, 569, 350 A.2d 364, 367 (1975). Yet as was implicit in Connolly, and explicit in Senecal, we do not consider a renewed objection at trial to the admissibility of evidence which was the subject of a suppression hearing before a different judge to be a “useless performance.”

5 Indeed, defendant seemed to concede as much in his argument before the trial court. Speaking of defendant’s activity in pulling behind the Burlington Electric Department, defendant stated that “[w]e agree that that is more than enough reason to stop under those circumstances, if the police officer had given that as a basis for the stop.”