State v. Colehamer

308 A.3d 440

2023 VT 39

STATE of Vermont

v.Theodore Dmitri COLEHAMER

No. 22-AP-225

Supreme Court of Vermont.

April Term, 2023 July 14, 2023

On Appeal from Superior Court, Windham Unit, Criminal Division, John R. Treadwell, J.

Evan Meenan, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

CARROLL, J.

¶ 1. Defendant Theodore Colehamer appeals two convictions following a jury trial—felony driving under the influence (DUI), fourth offense, and misdemeanor eluding a police officer. He contends that the trial court abused its discretion in denying defense counsel the opportunity to ask a question of potential jurors at voir dire, that it made multiple errors on evidentiary rulings, and that it improperly selected a jury foreperson. He also argues that the eluding conviction should be vacated because he did not violate the statute’s plain terms. We conclude that the court did not abuse its discretion on any of the evidentiary or jury issues but agree with defendant that he did not elude law enforcement as charged. Accordingly, we affirm the DUI conviction and vacate the eluding conviction.

I. Background

A. Facts

¶ 2. The following is drawn from witness testimony and exhibits introduced at trial. At approximately 11:30 p.m. on April 19, 2019, Brattleboro Police Officer Bradley Penniman saw defendant sitting on an electric scooter. The scooter was positioned on a sidewalk and was stationary. The officer stopped his marked police cruiser a short distance away and approached defendant on foot. Officer Penniman was in uniform and had activated his body camera. Penniman told defendant he could not ride on the sidewalk and asked whether defendant had consumed any alcohol that evening. Defendant said that he had not. Penniman then asked for defendant’s driver’s license. Defendant initially responded that he did not have his license with him, but then remembered that he did have it and gave it to Penniman. Penniman, noticing the smell of alcohol and defendant’s "confusion" and "slurred speech," asked defendant to "hang tight" while he went back to activate the cruiser’s dash camera. As Penniman did so, defendant drove away on the scooter. After he realized defendant had left, Officer Penniman got in the cruiser, activated its emergency lights, but not the siren, and attempted to locate defendant in the area, including at defendant’s nearby residence.

¶ 3. Shortly thereafter, Penniman spotted defendant, who was no longer on the scooter, and arrested him after a brief foot chase. Upon returning to the stationhouse, Penniman read defendant Miranda warn- ings and defendant indicated that he was not waiving them. Penniman told defendant that he was not going to administer field-sobriety tests because defendant had not waived Miranda rights. Defendant agreed to provide an evidentiary breath-alcohol sample. Penniman used a DataMaster DMT breath-alcohol testing device to determine defendant’s BAC, which was .103 at 1:11 a.m. At 1:16 a.m., a second test obtained a result of .106. Defendant consented to a search of his backpack in which Penniman found 1.21 ounces of marijuana, plastic baggies, and a scale.

B. Pretrial

¶ 4. As amended, defendant was charged with driving under the influence of intoxicating liquor, fourth offense, in violation of 23 V.S.A. § 1201(a)(2); operating a motor vehicle with an alcohol concentration of 0.08 or more, fourth offense, in violation of 23 V.S.A. § 1201(a)(1); and one count of eluding a police officer in violation of 23 V.S.A. § 1133(b)(1).

¶ 5. During voir dire, defense counsel wanted to ask the following question of potential jurors: "what is worse: an innocent person being convicted or a guilty person going free?" The State objected and argued that the question was designed to inflame the jury. The trial court refused to allow the question, stating that it "didn’t find it an appropriate question to ask." The court ruled that the question could "lead the jury to speculate about" unrelated matters.

¶ 6. Immediately preceding trial the next day, the court held a hearing on defendant’s motion for permission to ask Officer Penniman questions relating to a "Brady letter" prepared by the Windham County State’s Attorney in June 2021.¹ The letter disclosed the following:

Brattleboro Police Officer Bradley Penniman prepared an affidavit of probable cause in [a] case … which contains a material misstatement. The affidavit states that a notice of hearing containing defendant’s name was in a bag containing drugs when that notice was found in a different bag. That location was relayed to him from another officer, but he does not remember which officer and no other officer recalls making the statement.

Defendant contended that, based upon the contents of the letter, he should be allowed to put the question of Officer Penniman’s credibility to the jury under Vermont Rule of Evidence 608(b). The State countered that there was no evidence indicating Officer Penniman’s misstatement was untruthful; thus, it was not an appropriate question for the jury. The State also argued that the letter was not relevant given that the State’s evidence in the case was independently supported by body-camera footage, which meant that the jury was not relying on the officer’s testimony alone.

¶ 7. The court denied the motion. It ruled that while Penniman’s affidavit contained a factual inaccuracy, it was inaccurate because the information conveyed to Penniman was inaccurate, not because Penniman was untruthful. Accordingly, the misstatement was not probative of his truthfulness and defendant could not pursue a line of questioning regarding the Brady letter.

C. Trial

¶ 8. The State called Officer Penniman as a witness at trial. It asked Penniman to recite defendant's date and place of birth. Penniman indicated that he needed to be refreshed to correctly answer the question. The State provided him with a copy of defendant’s Vermont Arrest Custody Report. The State repeated the question after Penniman had reviewed the document, and Penniman answered. The State then asked how he learned of defendant’s place of birth, to which Penniman responded, "by looking at his criminal history record." At that point, defendant moved for a mistrial because, he argued, the State had elicited testimony concerning defendant’s "criminal history." He contended this was irrelevant and prejudicial. The State responded that it did not intend to elicit that answer and was not going to draw attention to it. It suggested that either the court could issue a curative instruction to the jury to disregard Officer Penniman’s testimony or it could simply continue on direct examination as if nothing had happened. The court asked defense counsel for his request, and counsel responded, "our request is for mistrial … we don’t want a curative instruction." The court ruled that the reference to defendant’s criminal and arrest history was brief, did not allude to what defendant’s criminal history was, if any, and was not overly prejudicial. Accordingly, it denied the motion for mistrial.

¶ 9. On cross-examination of Officer Penniman, defendant pursued a line of questioning focused on the amount of marijuana he found in defendant’s backpack. The State objected when defendant sought to raise the issue of whether the amount of marijuana Penniman found in the backpack constituted a criminal amount. Defendant’s theory of the case was that he was not intoxicated at the time of the incident, and his behavior stemmed from his nervousness at knowing he had a criminal amount of marijuana in his backpack. The court denied defendant’s request to introduce the issue of whether the amount was criminal but permitted defendant to elicit testimony from Penniman that he found 1.21 ounces of marijuana, baggies, and a scale in defendant’s backpack.

¶ 10. Defendant next sought to question Penniman about why he refused to administer field-sobriety tests; specifically, that Penniman apparently misunderstood that a refusal to waive Miranda rights does not foreclose the administration of field-sobriety tests. The State objected on the grounds that why Penniman refused—his mistaken understanding of the law—was not relevant to the issues before the jury. According to the State, whether Penniman provided defendant an opportunity to perform field-sobriety tests was the only relevant issue. Defense counsel responded that Penniman’s mistake went to impeaching Penniman’s investigation and deprived defendant of an opportunity to prove he was not intoxicated. The court refused to allow defense counsel to raise the issue but did permit him to ask Penniman whether he afforded defendant the opportunity to perform field-sobriety tests, to which Penniman said, "no."

¶ 11. Following cross-examination, the court asked whether any members of the jury had any questions for Penniman. One juror asked the following: "Why are you obligated to offer a field-sobriety test by law." At a bench conference, defense counsel indicated that he did not want the court to ask the question, and the court responded that "there is no evidence regarding field sobriety tests" and the jury "cannot rely [on the question presented] to determine either sobriety or a lack of sobriety. I’m not going to answer the question." Defense counsel said, "I agree" and reiterated his objection that he should be allowed to raise the issue of Penniman’s mistaken view of the law, which the court continued to overrule.

¶ 12. The State’s next witness was a forensic chemist from the Vermont Forensic Laboratory. During her testimony, the State sought to introduce a copy of defendant’s evidentiary breath-test results called a DataMaster ticket. Defendant objected and, on voir-dire examination, posed the following question to the chemist: "Would you agree that [defendant’s test...