State v. Hemond

2005 VT 12, 868 A.2d 734, 178 Vt. 470, 2005 Vt. LEXIS 25
CourtSupreme Court of Vermont
DecidedFebruary 2, 2005
DocketNo. 03-329
StatusPublished
Cited by13 cases

This text of 2005 VT 12 (State v. Hemond) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hemond, 2005 VT 12, 868 A.2d 734, 178 Vt. 470, 2005 Vt. LEXIS 25 (Vt. 2005).

Opinion

¶ 1. Defendant appeals a district court judgment convicting him, after a jury trial, of operating a motor vehicle in a grossly negligent manner with serious injury resulting, in violation of 23 V.S.A. § 1091(b). Defendant presses three arguments on appeal: (1) the trial court’s exclusion of his exculpatory written statement to the police on the day of the incident violated his right to present evidence and the rule of completeness; (2) the prosecutor’s statement during closing arguments that the outcome of the case would have no bearing on complainant’s pending civil case against defendant was prejudicial; and (3) the prosecutor’s expressions of personal opinion in his closing were plain error. None of defendant’s arguments warrants reversal. First, the court acted within its discretion by excluding the written statement because no part of the statement was introduced, so that the rule of completeness did not apply. Second, the prosecutor’s remarks concerning the impact this ease would have on the civil case were not so prejudicial as to warrant reversal, considering defendant already planted the seed in the jury’s mind of complainant’s potential motive to [471]*471lie. Finally, the prosecutor’s use of expressions like “I think” during his closing did not amount to plain error. Therefore, we affirm.

¶ 2. Defendant was charged with grossly negligent operation of a motor vehicle, in violation of 23 V.S.A. § 1091(b), for “blocking a motorcycle from passing and braking abruptly, thereby causing an accident in which [complainant] suffered serious bodily injury.” At trial, complainant testified that he was driving his motorcycle southbound on Route 7 in Georgia, Vermont, at approximately fifty to fifty-five miles per hour, when he came up behind the car driven by defendant. According to complainant, defendant’s car was moving below the speed limit", at about forty miles per hour. Complainant signaled to pass and pulled into the left lane. Defendant’s car then pulled into the left lane, preventing complainant from passing. Both vehicles then returned to the right lane.

¶3. Complainant again signaled to pass and, as he moved into the left lane, defendant’s car “jerked into the left hand lane.” Complainant testified he immediately pulled back into the right lane, as did defendant’s car. At this point, complainant estimated that both vehicles were traveling at about thirty-five miles per hour. As the vehicles approached the intersection with Interstate 89, where a concrete barrier divides the road, the car “slammed on his brakes” and slowed down. Complainant applied his brakes but could not stop in time, and the motorcycle’s front tire hit the ear’s rear bumper. Complainant flew through the motorcycle’s windshield, and his left shoulder hit the rear tailgate of the car. Defendant stopped and called 911.

¶ 4. Franklin County Deputy Sheriff Jacy Dennett responded to the scene and spoke with defendant. At trial, Deputy Dennett testified that defendant explained he had pulled over to the left and slowed down “to prevent [complainant] from passing” and “to block him.” The prosecutor asked the deputy if defendant had said why he was preventing the vehicle from passing, and the deputy replied, “[h]e didn’t want the vehicle to pass him before the median.”

¶ 5. Next to testify was Deputy Sheriff Allison Geary who also was present at the scene of the accident. She testified that defendant told her he had pulled over to stop the motorcycle from passing him because he was going to be turning onto 1-89. “He had simply stated that he had pulled over so the motorcycle would not pass him.”

¶ 6. On cross-examination of Deputy Geary, defense counsel offered a written statement defendant had provided to Deputy Geary after the accident. In the statement, defendant wrote that he was worried about the complainant’s vehicle passing and “getting in connection with island.” The written statement- does not say that defendant tried to block the motorcycle. The State objected to the written statement as hearsay, and the district court sustained the objection.

117. We turn first to defendant’s contention that the exclusion of his written statement was reversible error because it violated the rule of completeness and his right to present evidence. “We will reverse a trial court’s decision to admit evidence only if the court withheld or abused its discretion.” State v. Gemler, 2004 VT 3, ¶ 11, 176 Vt. 257, 844 A.2d 757. In sum, defendant argues that the trial court abused its discretion because, once the court allowed the State to introduce defendant’s oral statements to the police, the rule of completeness required admission of his written statement. We disagree.

118. The rule of completeness has been codified in Vermont Rule of Evidence 106: ‘When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part [472]*472or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” The plain language of the rule supports the trial court’s decision to exclude the written statement. Because the State did not offer any part of a written statement, defendant could not properly invoke the rule to introduce the statement as an “other part” or “other writing” related to a writing or recorded statement introduced by the State. In other words, because the State limited its proof to testimony concerning defendant’s oral statements to the police officers, the defendant could not use the separate written statement to complete that testimony under V.R.E. 106. See, e.g., United States v. Ramirez-Perez, 166 F.3d 1106, 1113-14 (11th Cir. 1999) (holding that defendant was not entitled to introduce exculpatory, contemporaneous written statement where prosecutor limited agent’s testimony to defendant’s incul-patory oral statements). In short, nothing in V.R.E. 106 or our caselaw suggests that the rule of completeness requires admission of a written statement based on its relationship to an oral statement that has been admitted into evidence. Therefore, the district court properly exercised its discretion when it excluded the written statement.

¶ 9. Moreover, the exclusion of the statement did not detract from defendant’s ability to present his theory of the case. In fact, defense counsel elicited the substance of the written statement from Deputies Dennett and Geary during their cross-examinations. Specifically, Deputy Dennett testified that defendant said he pulled to the left but did not cross the center lines, slowed down, and put on his blinker, and that he was “worried” that the vehicle approaching him quickly from the rear was going to hit the concrete barrier near the exit. Deputy Geary also testified that defendant said he was “worried about the vehicle passing him.” Additionally, defendant testified that he never told the officers he blocked the motorcycle, and that the oral and written versions of the incident he gave on the day of the accident were consistent with the version he testified to at trial. Because the deputies’ and defendant’s testimony covered the substance of the written statement and enabled defendant to articulate his theory of the case, no prejudice affecting a substantial right of defendant resulted from the - district court’s exclusion of the written statement.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Shawn Bellanger
2018 VT 13 (Supreme Court of Vermont, 2018)
State v. John Discola
2018 VT 7 (Supreme Court of Vermont, 2018)
State v. Matthew Webster
2017 VT 98 (Supreme Court of Vermont, 2017)
State v. Richared E. Ladue
2017 VT 20 (Supreme Court of Vermont, 2017)
State v. Jason Atherton a/k/a Melton
2016 VT 25 (Supreme Court of Vermont, 2016)
State v. Reynolds
2014 VT 16 (Supreme Court of Vermont, 2014)
State v. Leanne Gorman
Supreme Court of Vermont, 2012
State v. Brandt
2012 VT 73 (Supreme Court of Vermont, 2012)
State v. Wallace Nolen
Supreme Court of Vermont, 2011
Cote NOV
Vermont Superior Court, 2007
State v. Desautels
2006 VT 84 (Supreme Court of Vermont, 2006)
Loiselle v. Barsalow
2006 VT 61 (Supreme Court of Vermont, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
2005 VT 12, 868 A.2d 734, 178 Vt. 470, 2005 Vt. LEXIS 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hemond-vt-2005.