Opinion
No. 86-496
Opinion Filed January 15, 1988 Motion for Reargument Denied February 17, 1988
1. Motor Vehicles — Operating Under the Influence — Sufficiency of Evidence
Evidence that defendant's driving was erratic, he had difficulty maintaining upright position, he fumbled in searching for registration, and officer said defendant was one of more impaired drivers he had ever encountered, was sufficient to uphold verdict.
2. Appeal and Error — Jury Instructions — Failure to Object
Claimed error in jury instructions could be raised on appeal only if, after delivery of charge, aggrieved party made specific objection, including clear statement of matter to which he objected and grounds of objection.
3. Witness — Qualifications — Court's Discretion
Determination of whether person is qualified to testify is within trial court's discretion, and will not be interfered with unless trial court's decision is clearly erroneous; testimony by defendant about why there was discrepancy between breath test and amount of alcohol he admitted consuming did not call for expertise outside defendant's realm.
4. Appeal and Error — Preservation of Questions — Failure to Object
Despite potential viability of defendant's ground for objecting to admission of breath test, failure of defendant to make objection below prevented supreme court from considering line of attack on appeal.
5. Appeal and Error — Preservation of Questions — Failure to Object
Failure to renew objection to admission of certain evidence at trial after motion to suppress had been denied at suppression hearing deprived trial court of opportunity to consider grounds of objection, and issue could not be considered on appeal.
6. Appeal and Error — Failure to Object — Plain Error
To justify reversal on claim of error not presented below, supreme court must find plain error.
Appeal by defendant from conviction of driving while under influence of liquor on public highway. District Court, Unit No. 1, Windham Circuit, Mandeville, Jr., J. (trial); Hudson, J. (suppression hearing), presiding. Affirmed.
Cecelia L. Cunningham, Windham County Deputy State's Attorney, Brattleboro, for Plaintiff-Appellee. Arthur J. Lettieri, pro se, Putney, Defendant-Appellant.
Present: Allen, C.J., Peck, Gibson, Dooley and Mahady, JJ.
Defendant appeals from a conviction of driving while under the influence of intoxicating liquor on a public highway in violation of 23 V.S.A. § 1201(a)(2). We affirm.
After oral argument in this case, defendant made a motion for this Court to cancel his conditions of release. Given the result in this case, this motion must be denied.
I.
Among other contentions, defendant attacks the sufficiency of the evidence to support the jury's verdict. This Court has consistently held that when the evidence is conflicting, the credibility of the witnesses, the weight of the evidence, and its persuasive effect are questions for the trier of fact, and its determination must stand if supported by credible evidence even though there may be inconsistencies or substantial evidence to the contrary. See State v. Pecor, 127 Vt. 401, 403, 250 A.2d 736, 738 (1969).
Viewing the evidence in the light most favorable to the prevailing party, as we must, see State v. Jaramillo, 140 Vt. 206, 208, 436 A.2d 757, 759 (1981), the record reveals the following facts. On the evening of November 11, 1985, the arresting officer observed a vehicle approaching Interstate 91. The vehicle weaved erratically across the lanes of traffic as it approached the interstate and continued to weave erratically on the ramp and on the interstate. The officer turned on his vehicle's blue lights, and defendant pulled sharply into the breakdown lane. While attempting to leave his car, defendant nearly fell. Upon the officer's request, defendant located his license and registration, meanwhile exhibiting further signs of impairment.
Defendant had difficulty in maintaining an upright position in his car seat, he fumbled in his search for his registration, held onto the car to support himself, and gave off a strong odor of alcohol. When the officer informed defendant that he was under arrest for operating a vehicle on a public highway while under the influence, defendant responded with an expletive, told the officer to drive defendant's vehicle, and walked away. The officer stopped defendant and informed him that he had to accompany the officer to the station. When the officer tried to handcuff the defendant, a scuffle broke out and defendant threatened to hit the officer. The officer subdued the defendant and transported him to the station.
At the station, defendant exhibited additional disruptive behavior but completed the booking process and submitted to the breath test. During this process, defendant stated that he was not ill, tired, handicapped or under the influence of any drug except the one double cocktail which he admitted drinking earlier in the evening. The arresting officer testified that in his fourteen years as a police officer and out of sixty to one hundred arrests for intoxication, defendant was one of the more impaired drivers he had encountered.
Based on an examination of the entire record, sufficient evidence exists to support the jury's verdict that defendant was operating under the influence of intoxicating liquor in violation of 23 V.S.A. § 1201(a)(2).
II.
Defendant also objects to the jury instructions. Defendant argues that when the trial court instructed the jury under 23 V.S.A. § 1201(a)(2), charging defendant with operating a vehicle on a public highway while under the influence of intoxicating liquor, the court improperly failed to explain to the jury that he was not charged with § 1201(a)(1), which requires a determination of whether his blood contained .10 percent by weight of alcohol. Given the State's emphasis at trial on the test results, defendant claims that, absent a clarifying instruction, the jury could not distinguish between the two charges. The record, however, reveals that defendant failed to register his objection with the trial court.
23 V.S.A. § 1201(a)(1) and (2) provide:
(a) A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway while:
(1) there is .10 percent or more by weight of alcohol in his blood, as shown by analysis of his breath or blood; or
(2) under the influence of intoxicating liquor; . . . .
A claimed error in the jury instructions can be raised on appeal only if, after the delivery of the charge, the aggrieved party made a specific objection, including a clear statement of the matter to which he objects and the grounds of the objection. State v. Hoadley, 147 Vt. 49, 53, 512 A.2d 879, 881 (1986); V.R.Cr.P. 30. The purpose of this rule is to afford the trial court an opportunity to correct any error or oversight it might have made in the instructions. See State v. Morrill, 127 Vt. 506, 510-11, 253 A.2d 142, 145 (1969); Reporter's Notes, V.R.Cr.P. 30. Because defendant made no objection to the jury instructions at trial, we will not consider this claim of error on appeal.
III.
Defendant contends the trial court erred in requiring him to answer a question for which he lacked the requisite expertise to formulate an informed answer. The question the State asked was whether defendant had any explanation for why the analysis of his breath indicated that he had had more than one double cocktail. Defendant objected on the basis that he was not qualified to respond. When required by the court to answer, defendant stated that the test might have been incorrect because he was agitated over being arrested.
The determination of whether a person is qualified to testify is within the trial court's discretion, and this Court will not interfere unless the court's decision is clearly erroneous. State v. Bessette, 130 Vt. 438, 440, 296 A.2d 179, 180-81 (1972), overruled on other grounds, State v. Dacey, 138 Vt. 491, 496, 418 A.2d 856, 859 (1980). We find that defendant has not met this burden. V.R.E. 701 allows opinion testimony by lay witnesses if the opinion is "rationally based on the perception of the witness and . . . helpful to a clear understanding of . . . a fact in issue." The fact in issue was whether the breath test was correct. Defendant's answer was based upon his own perception. Defendant was not required to be an expert to give this answer. In fact, almost any answer by defendant could have been allowed by the court in this instance. Therefore, we find that defendant has failed to show that the court's requiring him to answer the question was clearly erroneous. See Bessette, 130 Vt. at 440, 296 A.2d at 180-81
IV.
Defendant also raises for the first time on appeal a contention that the crimper was not heated for the minimum time necessary to insure accurate breath test results. At trial, defendant objected to the admission of the test results based upon the theory that an improper foundation had been laid for admitting the test results. After further argument on this point, the court admitted the evidence. An objection made on the wrong grounds and overruled below precludes a party from making a different objection on other, tenable grounds on appeal. State v. Bissonette, 145 Vt. 381, 392, 488 A.2d 1231, 1237-38 (1985); V.R.E. 103(a). The rationale supporting this rule is consistent with the purpose of objections. An objection allows the opponent to correct the error, informs the court so it may rule intelligently and quickly on the question, and reduces the need for reversal and a new trial. Bissonette, 145 Vt. at 392, 488 A.2d at 1237-38. Despite the potential viability of defendant's new ground for his objection, the failure of defendant to make the objection below prevents this Court from now considering this line of attack. See 1 Weinstein's Evidence § 103[01], at 103-6, § 103[02], at 103-11 (1986).
V.
Defendant further asserts that the pretrial suppression hearing order was not supported by the facts. The suppression hearing judge held that the test results, all of defendant's voluntary statements, and all of defendant's statements made after defendant was read his rights were admissible. When these statements were introduced at trial before a different judge, however, defendant did not renew his objection. This Court has held that if the trial judge did not rule on defendant's motion to suppress and defendant fails to object at trial, the trial judge has been effectively denied the opportunity to consider the grounds of objection, and we will not consider the claim on appeal. State v. Senecal, 145 Vt. 554, 558, 497 A.2d 349, 351 (1985).
VI.
Finally, defendant raises several additional claims of error to which he did not object below. To justify reversal on any of the new claims of error, this Court must find plain error. Hoadley, 147 Vt. at 53, 512 A.2d at 881; State v. Kasper, 137 Vt. 184, 191, 404 A.2d 85, 89 (1979); V.R.Cr.P. 52(b). Upon review of the record, we can find no error in the trial court's procedures to which defendant now alleges error. Furthermore, we find no error requiring our utilization of plain error analysis as in the previous sections of this opinion. Affirmed. Defendant's October 27, 1987 motion to cancel conditions of release is denied.