NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
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before this opinion goes to press.


                                         2016 VT 113

                                         No. 2015-307

State of Vermont                                              Supreme Court

                                                              On Appeal from
   v.                                                         Superior Court, Addison Unit,
                                                              Criminal Division

Michael Grace                                                 September Term, 2016


Robert A. Mello, J.

David R. Fenster, Addison County State’s Attorney, and Ashley A. Hill, Deputy State’s
 Attorney, Middlebury, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Marshall Pahl, Appellate Defender, and Kerrie Johnson,
 Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.    EATON, J. Defendant appeals from a judgment of conviction of driving under

the influence, third offense, in violation of 23 V.S.A. §§ 1201(a) and 1210(d). Among other

claims, defendant contends the trial court committed prejudicial error by proceeding with a

motion-to-suppress hearing in defendant’s absence. We agree, and therefore reverse the order

denying the motion to suppress.

        ¶ 2.    This case arose out of a motor vehicle stop that occurred on the evening of

November 19, 2013, in the Town of Bristol, and resulted in a charge against defendant of driving
under the influence. Prior to trial, defendant moved to suppress all evidence resulting from the

stop and detention. The court held a hearing on the motion in March 2015. At the start of the

hearing, the court inquired about defendant’s absence, and defense counsel informed the court it

was “my fault, or at least my office’s fault” for failing to inform defendant that he should be there

“in person for this.” The court inquired whether there was “any issue of the defendant not being

here today?” The prosecutor responded, “[a]s far as going forward with the hearing, no, your

Honor.” The court then reviewed Vermont Rule of Criminal Procedure 43 to “just [to] be sure,”

noted that it provided that a defendant’s presence is not required “at a conference or argument on

a question of law,” and concluded, “So I don’t see any issue.” Defense counsel then stated that

defendant, “for what it’s worth . . . is under waiver of appearance.” The court acknowledged the

waiver, and proceeded with the hearing. Defense counsel did not object to the hearing proceeding.

        ¶ 3.    Officer Duplissis, a sergeant with the Vermont State Police, was the only witness

to testify at the hearing. The officer explained that, on the night in question, he had just finished

executing a search warrant at a residence on Route 116 in Bristol when he saw a truck drive by

going “clearly in excess of the speed limit” and well over the center line into the other lane. The

officer testified that he and another officer entered his cruiser and effected a motor vehicle stop.

They then spoke with the driver—later identified as defendant—who acknowledged that he was

speeding but explained that he had been followed by another vehicle through town.

        ¶ 4.    Defense counsel cross-examined the officer briefly, questioned him about his

location at the time he observed defendant’s vehicle, and confirmed that his observation of the

vehicle’s speed was “purely visual” and not based on the use of a radar gun. Defense counsel then

argued that a visual estimate of the vehicle’s speed was inadequate to justify the stop, and posited

that it was reasonable for a driver, observing several police cruisers on the side of the road, to cross




                                                   2
the center line to give them “a little bit of space.” The trial court denied the motion, finding on the

record that the officer’s training allowed him to make a reasonably accurate estimate of a vehicle’s

speed, and that there was no basis to support an inference that the vehicle crossed the center line

to avoid the parked police cruisers.

          ¶ 5.   The case proceeded to trial, where Officer Duplissis’s account of the stop was

largely consistent with his earlier testimony. He recalled further that, following the stop, the

officers observed a “furtive movement” by defendant and, based on that, ordered him to exit the

vehicle. As defendant opened the car door, Officer Duplissis “heard the clink of something

metallic landing on the ground” and, concerned that it was a firearm, ordered defendant to show

his hands. When he arrived at the vehicle, the officer observed that the object was a black box

cutter.

          ¶ 6.   Officer Duplissis then spoke with defendant, who told of being tailgated through

Bristol and speeding to get away from the following vehicle. While they were conversing, the

officer observed that defendant’s eyes were bloodshot and watery.             In response to further

questioning, defendant initially denied that he had consumed any alcoholic beverages that evening,

but later acknowledged that he had a glass of wine. Based on these observations, the officer

administered a number of field sobriety exercises, and subsequently arrested defendant for DUI

and transported him to the police barracks for processing and blood alcohol testing. The test result

was 0.099, which a State chemist calculated to be 0.121 at the time of operation.

          ¶ 7.   Officer Neary, a trooper with the Vermont State Police, assisted with the stop. His

account of the stop, detention, and arrest was largely consistent with that of Officer Duplissis,

although he also recalled detecting an odor of alcohol from defendant’s breath.




                                                  3
       ¶ 8.    Defendant testified on his own behalf. He explained that he was a resident of Ohio

but had been visiting his son and brother in Bristol on the day in question. He recalled that he had

spent the day hunting but had eaten nothing and had one glass of wine with his son that evening.

He stated that, as he was returning through town, he sped up to avoid another vehicle that was

tailgating him. He denied, however, that he was speeding or that he had crossed the center line.

At the time of the stop, defendant recalled that his vehicle had an Ohio license plate, that he was

wearing a flannel with a vest, and had bushy hair.

       ¶ 9.    Defendant’s recollection of the events that occurred after the stop differed in several

respects from that of the officers. He testified that the officers ordered him to put his hands up and

exit the vehicle, and that their guns were drawn as they approached. He recalled that one of the

officers then explained that they had just “come off a drug bust,” and that the officer then asked

defendant “where’s the drugs?” and sought permission to search his vehicle. Before performing

the field sobriety tests, defendant stated that he informed the officers that he had a bad back. He

also testified that his eyes were always bloodshot and watery due to a crushed lumbar in his back

for which he was taking medication. Defendant’s son testified, as well, corroborating defendant’s

account of his activities that day, including his claim that he had only a glass of wine before

leaving. Called to testify in rebuttal, Officer Duplissis denied that he had ever suspected defendant

of possessing drugs or asked him where he kept his drugs, and offered that he had a certified “drug

dog” with him during the stop which had stayed in the police cruiser.

       ¶ 10.   As noted, a jury found defendant guilty as charged. He was sentenced to a term of

one to three years, ten days to serve, and probation. This appeal followed.

       ¶ 11.   Defendant contends that the trial court erred in proceeding with the suppression

hearing in his absence. Absent an objection on this basis, we examine the claim for plain error,




                                                  4
which requires the showing of a “glaring error so grave and serious that it strikes at the very heart

of the defendant’s constitutional rights.” State v. Yoh, 2006 VT 49A, ¶ 39, 180 Vt. 317, 910 A.2d

883 (quotation omitted).

       ¶ 12.   “One of the most basic rights guaranteed by the [Sixth Amendment] Confrontation

Clause is the accused’s right to be present in the courtroom at every stage of his trial.” Illinois v.

Allen, 397 U.S. 337, 338 (1970). This right is codified in V.R.Cr.P. 43(a), which provides that

“[t]he defendant shall be present at the arraignment, at any subsequent time at which a plea is

offered, at every stage of the trial . . . and at the imposition of sentence, except as otherwise

provided by this rule.” In determining the scope of the right, the U.S. Supreme Court has explained

that it applies “at any stage of the criminal proceeding that is critical to its outcome” and where

the defendant’s “presence would contribute to the fairness of the procedure.” Kentucky v. Stincer,

482 U.S. 730, 745 (1987). The right has been recognized as applicable in any proceeding where

evidence is adduced that relates to disputed factual issues critical to the outcome of the case, and

the defendant’s absence would undermine its fairness and accuracy. See U.S. v. Moe, 536 F.3d

825, 830 (8th Cir. 2008) (“If the proceeding at issue addresses or involves factual questions, it is

possible that the defendant’s absence would thwart ‘a fair and just hearing.’ ” (quotation omitted));

United States v Clark, 475 F.2d 240, 246 (3d Cir. 1973) (“[W]here . . . there are substantial issues

of fact as to events in which the [defendant] participated, the trial court should require his

production for a hearing.” (quotation omitted)); People v. Dokes, 595 N.E.2d 836, 839 (N.Y. 1992)

(“In determining whether a defendant has a right to be present during a particular proceeding, a

key factor is whether the proceeding involved factual matters about which defendant might have

peculiar knowledge that would be useful in advancing the defendant’s or countering the People’s

position.”).




                                                  5
       ¶ 13.   Although we have not addressed the issue, these considerations have persuaded the

vast majority of courts, state and federal, to hold that a suppression hearing constitutes a critical

stage of a criminal trial in which the defendant enjoys a constitutional right to be present. See,

e.g., U.S. v. Law, 528 F.3d 888, 904 (D.C. Cir. 2008) (noting that defendant has right to be present

at any critical stage of criminal proceeding where “his presence would contribute to the fairness

of the procedure, and this can include a suppression hearing” (quotation omitted); Henderson v.

Frank, 155 F.3d 159, 166 (3d Cir. 1998) (holding that pretrial suppression hearing is critical stage

where right to be present applies because “its results might settle the accused’s fate” (quotation

omitted)); U.S. v. Johnson, 859 F.2d 1289, 1294 (7th Cir. 1988) (holding that “an accused person

has a right to be present at every critical stage of a criminal proceeding against him” and “a pretrial

suppression hearing is a critical stage.”); U.S. v. Dalli, 424 F.2d 45, 48 (2d Cir. 1970) (observing

that “a defendant has a right to be present at a suppression hearing where testimony is to be taken”

while recognizing that right may be voluntarily waived); People v. Gallegos, 226 P.3d 1112, 1120

(Colo. App. 2009) (“A defendant has a right to be present at every critical stage of a criminal trial,

including a suppression hearing.”); State v. Ralph B., 131 A.3d 1253, 1263 (Conn. App. Ct. 2016)

(holding that suppression hearing was “critical stage” where defendant had Sixth Amendment right

to be present); Redman v. State, 337 A.2d 441, 444 (Md. Ct. Spec. App. 1975) (holding that pretrial

suppression hearing constitutes critical “stage of the trial” where defendant enjoys constitutional

right to be present); Robinson v. Commonwealth, 837 N.E.2d 241, 247 (Mass. 2005) (holding that

“because the suppression hearing in this case would have required the taking of evidence and also

involved the admissibility of substantial evidence that could determine the outcome of the case,

the defendant was entitled . . . to be present”); State v. Grey, 256 N.W.2d 74, 76-77 (Minn. 1977)

(observing that “[f]ederal courts that have applied these principles in the specific context of




                                                  6
suppression hearings have almost uniformly held that it is reversible error to conduct such hearings

in the absence of defendant’s physical presence,” and holding that “defendant’s absence from the

pretrial suppression hearing was a violation of the due process and confrontation clauses found in

both our state and Federal constitutions”); State v. Williams, 250 N.E.2d 907, 913-14 (Ohio Ct.

App.1969) (“[A] hearing on a motion to suppress evidence, at which testimony of a witness is

received, whether held before or during the trial of a case, is such a part of a trial as to require the

presence of the accused.”); see generally C. Wright, et al., 3B Federal Practice & Procedure § 722

(4th ed.) (“If fact issues are presented . . . as they often will be on a pretrial motion to suppress

evidence, . . . it would seem that defendant has a right to be present.”). As the New York Court

of Appeals has cogently explained:

                There is no justification for distinguishing between the defendant’s
                right to “be present” in connection with testimony elicited at a trial
                on the propriety of a search and seizure and this same right in
                connection with testimony taken at a suppression hearing. . . . The
                significance of the suppression hearing is such that the rationale for
                requiring the defendant’s presence at the trial applies with equal
                force to require his presence at the suppression hearing. A denial of
                a motion to suppress evidence is a crucial step in a criminal
                prosecution: it may often spell the difference between conviction or
                acquittal. . . . . [T]he defendant alone may be able to inform his
                attorney of inconsistencies, errors and falsities in the testimony of
                the officers or other witnesses. In such a circumstance to hold that
                his presence is not essential is to deprive him of the opportunity to
                defend a denial of due process.

People v. Anderson, 213 N.E.2d 445, 447-8 (N.Y. 1965) (quotation omitted).

        ¶ 14.   These decisions demonstrate overwhelmingly that, where a court is asked to make

factual findings based on the evidence presented at a suppression hearing, a defendant must be

accorded the right to be present in order to confront the witnesses arrayed against him or her, to

assist counsel in formulating a defense, and ultimately to ensure a fair hearing and reliable result.

Here, the trial court conducted a full evidentiary suppression hearing, heard testimony, and entered



                                                   7
findings. This was not a case where the only issue was one of law and the outcome could not have

been affected by defendant’s absence. Cf. Johnson, 859 F.2d at 1294-95 (holding that defendant’s

presence was not required at suppression hearing where sole legal question was whether

photographic array was unduly suggestive).         The trial court’s reliance on the exception in

V.R.Cr.P. 43 for “argument upon a question of law” was therefore misplaced.

       ¶ 15.   Nor does the record support a finding that defendant voluntarily waived his right to

be present. See Dalli, 424 F.2d at 48 (noting that right to be present at suppression hearing “is not

absolute and may be relinquished by acts or statements of the defendant which constitute a

voluntary waiver”). The general written waiver of appearance signed by defendant, to which the

prosecutor alluded, merely tracked the language of V.R.Cr.P. 43(c)(3) in providing for a waiver of

appearance at status conferences and “arguments on questions of law.” Moreover, while defense

counsel appeared to acquiesce in the hearing going forward, his explanation for defendant’s

absence made it clear that it was not based on a knowing and voluntary waiver by defendant of his

right to be present. Counsel stated that he had sent defendant a notice of the hearing but had not

explained to defendant his need to be present in person. Thus, there is nothing to indicate that

counsel consulted with defendant on this point and explained his rights and what he would be

sacrificing by not appearing, or that defendant in response knowingly and voluntarily waived the

right. See People v. Gaines, 534 N.Y.S.2d 257, 258-59 (N.Y. App. Div. 1988) (observing that,

although right to be present at suppression hearing may be waived, “defendant must be informed

in some manner of the nature of his right to be present and the consequences of a failure to appear,”

and holding that counsel’s waiver was ineffective where there was no clear showing that counsel

spoke with defendant and that “defendant understood that his presence might be helpful to his

defense”).




                                                 8
        ¶ 16.   The question thus remains whether, notwithstanding the absence of an objection,

the trial court’s decision to proceed without defendant’s presence was an error so grave as to “strike

at the very heart of the defendant’s constitutional rights.” Yoh, 2006 VT 49A, ¶ 39 (quotation

omitted). As we explained in Yoh, a finding of plain error requires a showing as follows: “First,

there must be an error; second, the error must be obvious; and third, it must affect substantial rights

and result in prejudice to the defendant.” Id. If these factors are met, “an appellate court should

correct a plain forfeited error affecting substantial rights if the error seriously affects the fairness,

integrity or public reputation of judicial proceedings.” Id. (quotation and alteration omitted).

        ¶ 17.   As discussed above, the court’s decision to proceed without defendant’s voluntary

waiver of his right to be present was a fundamental violation of defendant’s constitutional right to

confront the witnesses against him and constituted a patent and obvious error. Also as discussed,

the court’s decision affected a substantial right. As noted, a suppression hearing represents a

critical stage in a criminal prosecution. It can, and often does, “spell the difference between

conviction or acquittal,” and the defendant’s presence may be crucial “to inform his [or her]

attorney of inconsistencies, errors and falsities in the testimony of the officers or other witnesses.”

Anderson, 213 N.E.2d at 447; see also Commonwealth v. Campbell, 983 N.E.2d 1227, 1231

(Mass. App. Ct. 2013) (noting that defendant’s presence at suppression hearing allows him or her

to hear and assess State’s witnesses, “consult with his [or her] attorney and, as a participant in the

event under examination, offer a unique perspective”).

        ¶ 18.   The record here shows that defendant’s testimony at trial differed markedly from,

and in several respects directly contradicted, that of the State’s only witness at the suppression

hearing. Had defendant been present at the suppression hearing, he could have testified to the

same effect. In addition, defendant could have provided counsel with useful and potentially critical




                                                   9
information in counsel’s cross-examination of the witness.          We cannot conclude with any

confidence, therefore, that defendant’s absence did not prejudicially affect the outcome of the

proceeding. See Grey, 256 N.W.2d at 77 (holding that reversal was required where defense

counsel not only failed to object, but affirmatively indicated that counsel had no objection to

holding suppression hearing in chambers outside of defendant’s presence, because it would be

“impossible . . . to determine what contribution or assistance to counsel defendant could have

rendered had he been present to hear the oral testimony of” police officer who seized evidence).

       ¶ 19.   Finally,    we     conclude      that   the     error    “seriously    affects    the

fairness, integrity, or public reputation” of the judicial process. Yoh, 2006 VT 49A, ¶ 39 (quotation

and alteration omitted). As the court observed in Grey, criminal justice requires not only a fair

and impartial hearing, but also one that “from a reasonably objective viewpoint, has every

appearance of fairness.”    256 N.W.2d at 77.     An affirmance on this record, in the face of an

“obvious and substantial error” affecting a core constitutional right, would in our view diminish

the integrity and reputation of the judicial process, and contravene the interests of justice. Yoh,

2006 VT 49A, ¶ 42. In deference to these interests, we conclude that the judgment must be

reversed, and the matter remanded for a new proceeding consistent with the views expressed

herein. Our conclusion renders it unnecessary to address defendant’s remaining claims.

        The order denying defendant’s motion to suppress is reversed, and the case is remanded
for a new suppression hearing with defendant present unless he voluntarily waives that right. The
judgment of conviction remains in effect unless and until the court on remand should decide to
grant the motion to suppress, in which case we order the judgment reversed and a new trial afforded
to defendant.

                                                FOR THE COURT:



                                                Associate Justice




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