op2007-334.html


State
of Vermont v. Lee
(2007-334)
 
2008
VT 128
 
[Filed
10-Oct-2008]
 
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, Vermont Supreme Court, 109 State Street,
Montpelier, Vermont 05609-0801 of any errors in order that corrections
may be made before
this opinion goes to press.



     2008 VT 128


 

No. 2007-334

 

State
of Vermont


Supreme Court


 


 


 


On Appeal from


    
v.


District
Court of Vermont,


 


Unit
No. 3, Lamoille Circuit


 


 


Kevin
Lee


May
Term, 2008


 


 


 


 


Dennis R. Pearson, J.


 

Christopher C. Moll, Lamoille County
Deputy State’s Attorney, Hyde Park, for 
 
Plaintiff-Appellee  
 
Matthew F. Valerio, Defender General,
and Anna Saxman,
Deputy Defender General,
  Montpelier, for
Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and
Burgess, JJ.
 
 
¶
1.            
DOOLEY,
J.   After a jury trial in Lamoille
District Court,
defendant was convicted on a third offense of driving under the
influence of
alcohol (DUI), giving false information to a police officer, and
attempted simple
assault.  On appeal, defendant argues: (1) the
court’s decision to play a
videotape of defendant invoking his right to silence violated the Fifth
Amendment to the Federal Constitution, Article 10 of the Vermont
Constitution,
and related statutory rights; (2) the court erred in failing to voir
dire the
jurors to determine if any had seen defendant on a video monitor while
he was
shackled; (3) the court erred in permitting two police officers to sit
in an
unused jury box during the trial; (4) the court failed to follow
Vermont Rule
of Criminal Procedure 24(d) in impaneling the jury; and (5) the court
violated
defendant’s right to testify by not informing him of that
right and depriving
him of it without an effective waiver.  We affirm.
¶
2.            
The
facts may be briefly
summarized as follows.  Defendant got into an altercation in
the parking lot of
Cumberland Farms in Morrisville, Vermont.  Police officers
arrived at the scene
and arrested defendant.  At the police department, defendant
was placed in a
holding cell.  Defendant’s questioning was
videotaped, and a portion of the
tape was shown to the jury during the trial.  
¶
3.            
Defendant
was charged with DUI, in
violation of 23 V.S.A. § 1201(a)(2), operating with a
suspended license, 23
V.S.A. § 674(b), attempted simple assault, 13 V.S.A.
§ 1023(a)(1), and giving
false information to a law enforcement officer, 13 V.S.A. §
1754(a).  In
addition, the State charged that defendant had been convicted of DUI
seven
times in the past and sought to have defendant adjudicated a habitual
offender,
pursuant to 13 V.S.A. § 11. 
¶
4.            
Prior
to trial, the court
impaneled a jury of fourteen persons, explicitly deciding not to
designate two
of them as alternates at that point.  The court explained that
the two alternates
would be selected by lot and dismissed just before the jury retired to
deliberate.  Defendant did not object to this
procedure.   
¶
5.            
During
the morning of the trial’s
second day, counsel for defendant alerted the court that several jurors
might
have seen defendant on a television monitor being led into court in
shackles. 
Defense counsel moved for a new trial because of this incident, and the
court
denied the motion.     
¶
6.            
Also
during the trial, two
plain-clothes officers were sitting in a second jury box, located
across the
courtroom from the jury box used during the trial and in the direct
line of sight
of the jurors.  Defense counsel argued that the jury would
infer that the plain-clothes
officers were guarding defendant and conclude that defendant was
incarcerated
during the trial, a conclusion that would prejudice them against
him.  He
sought a mistrial on this basis; the trial judge denied the motion.
¶
7.            
The
jury convicted defendant of
DUI, attempted simple assault, and giving false information to a police
officer.  Thereafter, on proof of the former DUI convictions,
the jury found
that defendant was a habitual offender.  Defendant moved for a
new trial, and
the court denied his motion.  
¶
8.            
After
the verdict, defendant also moved
to dismiss his counsel for multiple reasons, including that
“[c]ounsel refused [to
allow] the defendant to testify on his own behalf.” 
The court never acted on
this motion because defendant withdrew it.  Defendant never
asserted before or
during the trial that he was being denied his right to
testify.  This appeal
followed.
¶
9.            
Defendant’s
first argument on
appeal is that the court erred in allowing the State to play a
videotape of defendant
in a holding cell wherein he invokes his rights to speak with an
attorney and
to not respond to questions posed by a police officer. 
We note that the
parties originally disputed what part of the video tape had been played
to the
jury.  The transcript showed that a part of the marked tape
was shown to the
jury, but neither the parties nor the court specified what
part.  The parties
have now stipulated to the portion shown to the jury.  We
request that our
civil and criminal rules advisory committees propose a draft rule
amendment for
criminal and civil cases to provide a clear record for appeal of what
the
fact-finder has seen and heard if a video or audio recording is
submitted as
evidence.
¶
10.        
We
have reviewed the portion of
the videotape on which defendant’s argument relies.[1] 
On the video, defendant is in a holding cell while an officer explains
his
rights to him from a standard-form DUI processing sheet. 
During this
explanation, defendant shouts obscenities at the officer.  He
stops and remains
silent at about the time the officer asks whether defendant has
understood the rights
that were explained to him.  Although the officer asks this
question multiple
times, defendant does not answer.  Nor does defendant answer
the question “Do
you want to talk to me now?”  Defendant argues that
his failure to answer the
latter question was an invocation of his right to remain silent and
that it was
an error of constitutional magnitude to show the tape of defendant
invoking his
right to silence to the jury.
¶
11.        
At
the outset, we note that this
argument was not preserved in the district court.  The State
introduced the
tape to show intoxication, and the court admitted it for that purpose.
Defendant did not challenge the admission of the videotape in his
new-trial
motion.  In the absence of preservation, we can reverse the
court’s decision
only if it was plain error.  State v. Oscarson,
2004 VT 4, ¶ 27, 176 Vt. 176, 845 A.2d 337. 
“Plain error exists only in exceptional circumstances where a
failure to recognize error would result in a miscarriage of justice, or
where
there is a glaring error so grave and serious that it strikes at the
very heart
of the defendant’s constitutional
rights.”  State v. Pelican, 160
Vt. 536, 538, 632 A.2d 24, 26 (1993) (quotation omitted).
¶
12.        
We
find no plain error in the
court’s decision to allow the jury to see the
video.  Defendant relies on Doyle
v. Ohio, 426 U.S. 610 (1976), and two Texas cases, Hardie
v. State,
807 S.W.2d 319 (Tex. Crim. App. 1991) and Fierro v. State,
969 S.W.2d 51
(Tex. App. 1998), to argue that showing a video of defendant invoking
his right
to silence was a violation of his constitutional rights and plain
error.  In Doyle,
the State used defendant’s failure to explain his conduct,
following Miranda
warnings, as evidence that the explanation he gave at trial was
invented.  The
Court held that “it would be fundamentally unfair and a
deprivation of due
process to allow the arrested person’s silence to be used to
impeach an
explanation subsequently offered at trial.”  Doyle,
426 U.S. at 618.  Following Doyle, we have
held that it was error to allow testimony
that a defendant asserted his right to silence.  State
v. Percy, 149 Vt. 623, 627, 548 A.2d 408, 410 (1988); State
v. Mosher, 143 Vt. 197, 205-06, 465
A.2d 261, 265-66 (1983).  In Mosher, for
example, the State solicited an
officer’s testimony that after the defendant was given Miranda
warnings,
the defendant did not provide an explanation when confronted with the
confession of his friends.  During closing arguments, the
prosecutor suggested
that the defendant should have given the story he gave at trial in
response to
police questioning.  We held this was a violation of the
defendant’s
constitutional rights, because the State used the defendant’s
silence in an
attempt to prove his guilt.  143 Vt. at 206, 465 A.2d at 266. 
¶
13.        
In
Doyle and Mosher,
the prosecution used each defendant’s invocation of a right
to silence to prove
the defendant’s guilt and impeach his testimony.  Doyle,
426 U.S. at 611; Mosher, 143 Vt. at 204-06, 465
A.2d at 265-66.  The same is true of the Texas cases on which
defendant relies.  See Hardie, 807 S.W.2d
at 322 (holding that
evidence of the defendant invoking his right to counsel is inadmissible
“as
evidence of guilt”); Fierro, 969 S.W.2d
at 54-55 (stating that an audio
recording of the defendant invoking his right to counsel and to remain
silent
is inadmissible as evidence of guilt).  In the present case,
by contrast, the
videotape was introduced to show defendant’s behavior as
evidence that he was
intoxicated.  We recognized this distinction in State
v. Voorheis, where
the prosecution allegedly commented on the defendant’s right
to silence in the
following manner: (1) by a police officer testifying that the defendant
initiated a conversation with the officer after the defendant had
initially
indicated he did not want to give a statement; and (2) after defendant
testified that a witness blackmailed him into having sex with her, the
prosecutor asked whether the testimony was the first time that
defendant had
told anyone about the blackmail.  2004 VT 10,
¶¶ 17-19, 176 Vt. 265, 844 A.2d
794.  We noted that in neither instance was the prosecution
claiming
that defendant’s silence showed his guilt, that the
prosecution drew no
attention to the testimony, and that the trial court stated that it
would be
surprised if any juror noticed the prosecution’s question or
its significance.  Id. ¶
19.  We concluded “these comments are not even
remotely similar
to the extensive, direct references to defendant’s invocation
to his right to
silence that we have previously held
unconstitutional.”  Id. 
Thus, we
found no constitutional violation.[2] 

¶
14.        
If
anything, this is a clearer
case than Voorheis.  Assuming that the
jury could understand the words
spoken on the tape, it is not clear that the jury would have viewed
defendant’s
conduct as an invocation of his right to remain silent as opposed to a
pause in
his belligerent obscenities.  The State did not offer the tape
to show
defendant was guilty because he refused to speak with the officer;
there was no
focus at all on the content of what defendant said or did not
say.  The whole
point of showing the tape was to show defendant’s behavior.
 In its closing
argument, the State noted only that the jury had “see[n] the
video.”  In the
words of Voorheis, there was no
“extensive, direct reference” to
defendant’s purported invocation of his Miranda
rights.  We hold,
therefore, that there was no error in the court’s decision to
play the video, and
certainly no plain error.
¶
15.        
The
second issue raised on appeal
relates to the alleged viewing on a security monitor of defendant in
shackles. 
Defense counsel saw the incident and told the court that when a juror
was at
the courthouse security checkpoint, “the T.V. screen went on
with [defendant]
standing with one of the guards, and the juror looked because it
beeped.” 
Defense counsel noted, however, that the security checkpoint guard had
made an
effort to block the image of defendant that appeared on the screen and
that he
did not know if the image “was clear to the juror or
not.”  Defense counsel
stated that he believed that juror number fourteen was the one who had
seen
defendant in shackles.  In response, the court excused that
juror in choosing
the twelve jurors who would deliberate.[3]
 The court did not question juror number fourteen.  
¶
16.        
Notwithstanding
the decision to
excuse juror number fourteen, the court took testimony from the
checkpoint
security officer after the jury retired to deliberate. 
According to the
officer, the security monitor usually displays four images
simultaneously.  When
someone enters the back door of the building, the system makes a
beeping sound
to alert officers watching the monitor, and then the screen switches to
a
single image from the back door camera.  When showing a single
image, the
officer testified, the screen shows a nine-to-ten inch image of low
quality. 
In this case, the officer testified, the system beeped and shifted to
an image
of defendant standing with another officer, with that officer taking
sixty-five
to seventy percent of the image on the screen.  The officer
testified that he
then stepped between the juror going through security and the monitor,
and
within a second, the monitor shifted back to showing the four images
from the
four cameras.  The officer stated that he believed that it was
juror number
eight who was going through security when the system beeped, but he
could not
be sure whether that juror saw the monitor or defendant on
it.     
¶
17.        
This
testimony led to a discussion
of whether defense counsel could or should testify because his view of
what the
juror might have seen on the screen differed from the
officer’s account.  Defense
counsel moved to withdraw as counsel for defendant because he could not
be both
a lawyer for defendant and a witness.  The court denied this
motion.  At
that point, further consideration of the issue was postponed. 

¶
18.        
After
the jury returned its
verdicts, the court mentioned to the jury that one juror was
“at the security checkpoint
when the television monitor beeped” and
inquired whether any of the
jurors heard the beep.  The court specifically inquired of
juror eight.  All
responded negatively, and all responded negatively when asked if they
had
discussed what any juror had seen on the monitor.  Defense
counsel declined the
opportunity to ask further questions.  
¶
19.        
Later
that day, the prosecutor sent
defense counsel an e-mail, notifying him that the security officer was
informed
by juror number eight when she left the courthouse that she did, in
fact,
recall the “monitor incident” but believed that it
“didn’t mean anything.” 
With this information in hand, defendant moved for a new trial arguing
that he
had been prejudiced by the court’s refusal to allow defense
counsel to withdraw
and testify, by at least one juror’s viewing of the screen,
and by the court’s
failure to question juror number fourteen as to what appeared on the
screen.  
¶
20.        
The
trial court denied the motion,
ruling that even if there was any inadvertent viewing of defendant,
there was
no error or prejudice to defendant because: (1) defense
counsel could have
testified without withdrawing; (2) the court in any event accepted
defense
counsel’s representations, and as a result, excused
juror fourteen; (3) the
court questioned the jurors who deliberated on whether there had been
any
discussion of seeing defendant on the monitor, and they indicated there
was no
discussion; (4) all jurors also indicated they did not see or hear
anything; and
(5) the court was convinced that if there were any inadvertent viewing
of
defendant, it had no effect on the jury.  In this Court,
defendant argues that
the trial court made a fundamental error in not immediately questioning
the
jurors when defense counsel reported the incident. 
¶
21.        
Relying
primarily on the United
States Supreme Court’s decision in Deck v. Missouri,
544 U.S. 622
(2005), defendant argues that a defendant’s due process
rights are violated if
the jury sees him shackled, without adequate justification, during the
guilt
phase of a trial and that he need not establish actual prejudice in
order to
make out the violation.  In Deck, the
defendant was convicted of the
murder of an elderly couple and sentenced to death.  After
being granted a new
sentencing hearing, defendant appeared in court wearing shackles
visible to the
jury.  After surveying common law and current practice, the
Supreme Court held that
“the Fifth and
Fourteenth Amendments prohibit the use
of physical restraints visible to the jury absent a trial court
determination,
in the exercise of its discretion, that they are justified by a state
interest
specific to a particular trial.”  Id.
at 629.  The rule articulated in Deck,
and reflected by the Court’s earlier decision in Estelle
v. Williams,
425 U.S. 501 (1976), is supported by two rationales.  The
first is that “[v]isible
shackling undermines the presumption of innocence and the related
fairness of
the factfinding process.”  Deck,
544 U.S. at 630; accord Estelle,
425 U.S. at 511.  The second rationale is that
“[s]hackles can interfere with
the accused’s ability to communicate with his
lawyer.”  Deck, 544 U.S. at 631
(quotation omitted).  
¶
22.        
The
underlying presumption of
defendant’s argument is that if one juror briefly sees a
defendant in shackles
outside of the courtroom, a mistrial must be called under Deck. 
We
disagree.  The case law is decidedly to the
contrary.  See, e.g., United
States v. Jones, 468 F.3d 704, 709 (10th Cir. 2006)
(“In itself, a juror’s
brief view of a defendant in shackles does not qualify as a due process
violation.”); United States v. Gayles, 1
F.3d 735, 739 (8th Cir. 1993)
(when the juror’s view of the shackled defendant is
“brief, inadvertent and
outside the courtroom, prejudice to the defendant is
slight”); United States
v. Moreno, 933 F.2d 362, 368 (6th Cir. 1991) (exposure of a
jury to a
defendant in shackles requires a mistrial only when the exposure is so
inherently prejudicial to deny a fair trial; defendant must show actual
prejudice where exposure was during routine security measures outside
the
courtroom); Ritchie
v. State,
875 N.E.2d 706, 718 (Ind. 2007) (Deck and its
predecessors apply only to visible shackles during a courtroom
proceeding;
video of defendant being questioned while in jail clothing and shackles
raises
only “minuscule” risk of diluting the presumption
of innocence or of guilt
being established by an “extraneous influential
factor”); State v. Nields,
752 N.E.2d 859, 890 (Ohio 2001) (same as Gayles).
 Indeed, given
the limited ability to separate trial participants in many of our rural
courthouses, it is likely that such exposure is not infrequent.
 Cf. Davis
v. Commonwealth, 899 S.W.2d 487, 491 (Ky. 1995) (noting that
it was
impossible to conduct a trial without the jury seeing “that
the defendants are
not entirely free to come and go as they please” in case
where defendant entered
the courtroom in handcuffs which were then removed (quotation
omitted)), overruled
on other grounds by Merriweather v. Commonwealth,
99 S.W.3d 448 (Ky.
2003). 
¶
23.        
This
issue must be viewed in light
of our settled law on extraneous influences on the jury.  See State
v.
Squires, 2006 VT 26, ¶¶ 20-23, 179 Vt. 388,
896 A.2d 80; State v. Gorbea,
169 Vt. 57, 60-61, 726 A.2d 68, 70 (1999); State v. McKeen,
165 Vt. 469,
472-76, 685 A.2d 1090, 1092-94 (1996).  We have adopted a
two-part initial
inquiry: (1) whether the irregularity occurred; and (2) whether the
irregularity had the capacity to affect the jury’s
verdict.  Gorbea, 169 Vt. at 60, 726 A.2d
at 70.  If defendant demonstrates these two elements, the
burden shifts to the State to show the absence of prejudice.  Squires,
2006 VT 26, ¶ 21.  Because the trial judge develops a
relationship with the
jury, we view the trial judge to be in the best position to determine
whether
there was improper influence on the jury’s verdict. 
Id. ¶ 20.  Thus, we
accord the judge discretion and reverse only for abuse of that
discretion.  Id.  We believe that
this discretion must extend to the procedure the court adopts
to determine whether there has been an improper influence as well as to
the
substance of the determination.
¶
24.        
We
see no abuse of discretion in
the procedure the court adopted in this case.  While the court
could have
questioned the jurors immediately, that course of action might have had
the
effect of unnecessarily highlighting the issue where defendant made no
showing
of special prejudice and the likelihood of unfair prejudice was
small.  The
court eventually removed the juror defense counsel identified as having
seen
the security monitor and questioned the remaining jurors so as to
satisfy
itself that the incident had no improper extraneous influence on the
jury
verdict.  We affirm that determination.
¶
25.        
Defendant’s
next argument is that
the trial court “erroneously permitted two police officers to
sit in the jury
box” and that these officers had “an extraneous
influence on the jury.”  On the second day of trial, defense
counsel brought to the
court’s attention that the jurors had asked a court employee
who the two men
sitting in the courtroom were, and the employee answered that he did
not know.  In
defense counsel’s view, this way of answering the
jurors’ question “would lead
the jury to conclude [that the men] must be . . . from corrections or
something
of that nature.”  Defense counsel argued that the
jurors would assume that they
were plain-clothes police officers and that the officers’
presence raised a
presumption that defendant was incarcerated and undermined the
presumption of
defendant’s innocence.  Defendant then moved for a
mistrial.  After a hearing
in which a court officer testified to the conversation with the jurors,
the
court denied the motion.
¶
26.        
As
discussed supra ¶ 23,
there is a two-step process to determine whether an extraneous
influence is
present, by inquiring (1) whether an irregularity occurred, and
(2) whether
the irregularity had the capacity to affect the jury’s
verdict.  Gorbea,
169 Vt. at 60, 726 A.2d at 70.  If defendant establishes these
two elements,
the burden shifts to the State to show the absence of
prejudice.  Squires,
2006 VT 26, ¶ 21.  We accord the trial judge
discretion and reverse only for
abuse of that discretion.  Id. ¶
20.  Similarly, we will not reverse the
court’s denial of a motion for mistrial unless the court
abused its discretion
or withheld its discretion altogether.  State v.
Desautels, 2006 VT 84, ¶
18, 180 Vt. 189, 908 A.2d 463.  
¶
27.        
A
presumption of innocence in
favor of the accused is a basic element of a fair trial in our system
of
justice.  Estelle, 425 U.S. at
503.  Like shackling, having the
defendant appear continuously before the jury in prison garb undermines
that
presumption.  Id. at 504-05.  A
brief reference to a defendant’s
incarceration is not enough, however, to undermine the presumption and
cause a
mistrial. See United
States
v. Villabona-Garnica,
63 F.3d 1051, 1058 (11th Cir. 1995); United States
v. Barcenas,
498 F.2d 1110, 1113 (5th Cir. 1974).  
¶
28.        
Here,
there is nothing beyond
speculation to show that the jury knew that defendant was
incarcerated.  Court
security is now ubiquitous, and its presence does not necessarily show
that
defendant is incarcerated.  Similarly, it is mere speculation
that the jury was
influenced by the response of the court officer.  In such
circumstances, we
cannot find that the court abused its discretion in not declaring a
mistrial. 
See, e.g., United States v. Blasingame, 219 F.
App’x 934, 947 (11th Cir.
2007) (no error where comment of the court “required the jury
to make several
inferential steps to conclude that defendant was in
custody”); State v.
Drayton, 175 P.3d 861, 869 (Kan. 2008); State v.
Freiburger, 620
S.E.2d 737, 742 (S.C. 2005). 
¶
29.        
Defendant’s
next argument is that
the court erred, under Vermont Rule of Criminal Procedure 24, in not
designating
two jurors as alternates at the beginning of the
trial.   The court selected
fourteen jurors at the jury draw before trial, explaining that the
court typically
chooses “more jurors than will actually decide the
case” in cases like this
one, involving “a multi-day trial” that was
“not going to get started for three
weeks.”  None were designated as alternates. 
Defense counsel did not
object to this procedure or raise the issue in any post-verdict
motion.  Because
defendant did not preserve this argument, we review the trial
court’s decision
only for plain error.  
¶
30.        
Rule
24(d) provides in pertinent
part:
The
court may direct that not more than four jurors in addition to the
regular jury
be called and impanelled to sit as alternate jurors. Alternate jurors
in the
order in which they are called shall replace jurors who, prior to the
time the
jury retires to consider its verdict, become or are found to be unable
or
disqualified to perform their duties.  Alternate jurors shall
be drawn in the
same manner, shall have the same qualifications, shall be subject to
the same
examination and challenges, shall take the same oath, and shall have
the same
functions, powers, facilities, and privileges as the regular
jurors.  An alternate
juror who does not replace a regular juror shall be discharged after
the jury
retires to consider its verdict.
 
V.R.Cr.P.
24(d).  Here, the court did not designate alternates until
just before the jury
retired to deliberate.  The federal courts have interpreted
the equivalent
federal rule[4]
to require immediate designation of the alternate jurors.  See
United States v. Brewer, 199 F.3d
1283, 1286-87 (11th Cir. 2000); United States
v. Love, 134 F.3d 595, 601 (4th Cir. 1998).  As the
Sixth
Circuit explained, the federal rule “assumes that alternate
jurors will be
designated separately—and sequentially—before
the trial begins.”  United
States v. Delgado, 350 F.3d 520, 525 (6th Cir. 2003)
(emphasis added).  The
federal rule does not authorize the procedure employed here. 
See United States v. Mendoza,
510 F.3d 749, 753 (7th Cir. 2007); Delgado, 350
F.3d
at 525.
¶
31.        
We
recognize that there are
benefits from the procedure adopted by the trial court.  As
the court in Mendoza noted:
[A]ll
16 tentative jurors may be more likely to devote their full attention
to the
evidence presented given the likelihood that they will not be selected
as an
alternate.  If an alternate replaces a juror during
deliberations, the
collective knowledge of the newly constituted jury would be likely to
suffer.
 
510
F.3d at 753.  The only significant risk of prejudice involves
defendant’s
ability to use peremptory challenges against jurors who have the
greatest
likelihood of serving.  Thus, the federal decisions have
generally held that
error in failing to designate alternates under federal rule 24(c) is
harmless
unless defendant can show specific prejudice.  See id.
at 754; Delgado,
350 F.3d at 526.  These rulings are consistent with our
decision in State v.
Lambert, 2003 VT 28, 175 Vt. 275, 830 A.2d 9, in which the
court dismissed
a juror on the State’s request, after the jury was impaneled,
and defendant
argued that the dismissal was improper.  We held that any
error was harmless
because defendant has no right to any specific juror.  Id.
¶ 10.  We
recognized that the result could be different if the State, in effect,
gained
an extra peremptory challenge from the dismissal for cause.  Id.
¶ 11. 
We follow the federal decisions and require defendant to show prejudice
before
the error of failing to designate alternate jurors can be considered
reversible
error.
¶
32.        
 To
the extent defendant suffered
any harm on the basis of the Rule 24 violation, that harm related to
defendant’s
use of peremptory challenges.  Rule 24(d) provides for
additional peremptory
challenges for the parties to use specifically against potential
alternates:
one peremptory challenge whenever one or two alternates are impaneled,
and two
additional peremptory challenges whenever more than two alternates are
impaneled.  V.R.Cr.P. 24(d); cf. Mendoza,
510 F.3d at 753 (similar
practice by trial court rendered defendant “unable to
exercise peremptory
challenges specifically against alternate jurors”). 
The additional peremptory
challenge or challenges can be used only against an
alternate.  V.R.Cr.P.
24(d).  Here, the court gave each side seven peremptory
challenges, one more
than the normal six, V.R.Cr.P. 24(c)(3), to reflect the presence of the
two
additional jurors.  Defendant used all his peremptory
challenges, and the State
did not.  We can only speculate whether defendant came out
ahead or behind in
relation to the procedure specified in the rule.  On the one
hand, defendant
gained an unrestricted peremptory challenge.  On the other
hand, defendant may
have exercised a peremptory challenge with respect to a juror who would
have
been dismissed by lot at the end of the evidence.  Defendant
has not argued
that his right to peremptory challenges was impaired or that there was
an
additional juror that he wanted to challenge.  The procedure
did not give an
extra unrestricted peremptory challenge to the State because it did not
use all
its peremptory challenges.  Under the circumstances, the
procedure was
harmless, and thus, there was no error.  Since it was not
error, it was not
plain error.[5]

¶
33.        
In
his final argument, defendant
asks this Court to overrule our decision in In re Mecier.[6] 
143 Vt. 23, 460 A.2d 472 (1983).  In Mecier,
we held that a defendant
waives his right to testify when he acquiesces to the advice of his
attorney not
to testify on his own behalf or fails to assert the right to testify at
or
before trial.  Id. at 28, 460 A.2d at
475.  Defendant argues that we
should find that waiver will not be presumed from a silent
record.  Defendant
puts forward three reasons for us to overrule Mecier:
(1) Mecier
was decided before the constitutional underpinnings of the right to
testify
were fully developed in Rock v. Arkansas, 483 U.S.
44 (1987), and State
v. Brunelle, 148 Vt. 347, 534 A.2d 198 (1987); (2) a number
of circuit and
state courts decided, after Rock, to require a
record colloquy with
defendant personally; and (3) this Court requires a record colloquy for
the
waiver of other rights.  We address each argument in turn.
¶
34.        
Defendant
first argues that the
subsequent ruling by the United States Supreme Court in Rock
v. Arkansas,
and our ruling in State v. Brunelle, cast doubt on
our analysis of a
defendant’s right to testify on his own behalf under the
United States and Vermont Constitutions in Mecier. 
The United States Supreme Court stated
in Rock that a defendant’s right to
testify on her own behalf is a
fundamental constitutional right.  483 U.S. at 45
n.10.  We held in Brunelle
that Article 10, Chapter I of the Vermont Constitution
“explicitly includes the
right to testify on one’s own behalf.” 
148 Vt. at 352, 534 A.2d at 202. 
Defendant argues that because the right to testify on one’s
own behalf is a
fundamental constitutional right, waiver of this right should not be
allowed
without a personal waiver by defendant based on a colloquy on the
record.
¶
35.        
In
Mecier, we
required
defendants to assert their right to testify in their own
defense. 
143 Vt. at 28, 460 A.2d at 475 (“[T]he right [to testify] is
subject to the limitation that the
defendant make his objection known at trial, not as an
afterthought.”
(quotation omitted)).  Rock does not
require a different result.  Rock
overturned Arkansas’s per se rule that a defendant could not
testify regarding
memories recovered under hypnosis because the rule violated the
defendant’s
right to testify.  483 U.S. at 62.  The defendant in Rock
asserted her
right to testify, but was not allowed to do so.  Here,
defendant failed to
assert his right to testify.  Because defendant did not assert
his right to
testify on his own behalf as required by Mecier, he
cannot now claim
that this was a violation of his constitutional right under Rock.
 The
United States Supreme Court in Rock recognized that
a defendant’s right
to testify is not without limitation and “must comply with
established rules of
procedure and evidence.”  Id. at
56 n.11 (quotation omitted).  
¶
36.        
Nor
is Brunelle any help to
defendant.  That case involved the right to testify without
being impeached by
unconstitutionally obtained evidence.  In this context, we
held that Chapter I,
Article 10 of the Vermont Constitution gives a defendant greater rights
than do
analogous provisions of the Federal Constitution.  Compare United
States v.
Havens, 446 U.S. 620, 627-28 (1980) (unconstitutionally
obtained evidence
can be used to impeach testimony given for the first time on
cross-examination),
with Brunelle, 148 Vt. at 353, 534 A.2d at 203
(suppressed unconstitutionally
obtained evidence can be used to impeach only testimony directly
contradictory
to that suppressed).  We based our decision in Brunelle
on the chilling
effect that the State’s use of unconstitutionally obtained
evidence could have
on a defendant’s decision to testify.  148 Vt. at
353, 534 A.2d at 203.  In the
present case, defendant made no effort to assert his right to testify
before or
during trial.  Like the defendant in Rock,
and unlike defendant here,
the defendant in Brunelle asserted his right to
testify but decided not
to do so when the trial court ruled the State could use
unconstitutionally
obtained evidence to impeach him on cross-examination.  Id.
at 348, 534
A.2d at 199-200.  Because defendant did not assert his right
to testify on his
own behalf, he cannot now claim that this was a violation of his right
to
testify under the Vermont Constitution.
¶
37.        
Finally,
on this point, we note
that we reaffirmed the holding of Mecier, after the
decisions in Rock
and Brunelle, in State v. Mumley,
153 Vt. 304, 305, 571 A.2d 44, 44-45
(1989).  Citing Brunelle, we recognized in
Mumley that the right
to testify in one’s own defense is a constitutional right
under both the
Federal and Vermont Constitutions.  Id. 
Moreover, Mumley is more
than a decision following Mecier as a matter of
stare decisis.  As noted
below, it analyzes again the policy behind the decision and endorses
it.  See id.
at 306, 571 A.2d at 45.
¶
38.        
Defendant
next argues that we
should follow the circuit and state courts that decided,
after Rock, to require a personal waiver of the
right to testify through
a colloquy on the record.  Defendant cites
numerous courts that now
require a personal waiver, including four circuit courts.  The
requirement of a
record colloquy, however, is not the majority rule.  See Brown
v. Artuz,
124 F.3d 73, 78-79 (2d Cir. 1997) (collecting cases); 6 W. LaFave et
al.,
Criminal Procedure § 24.5(d), at 437-38 (3d ed.
2007).  We discern no
clear consensus or trend in the decisions of the state and federal
courts, and
find nothing in the authorities cited by defendant that undermines our
holding
in Mecier.  Thus, we are not persuaded
that the decisions after Mecier,
even those that reached a different result, are grounds to overturn
that
decision.  See State v. Berini,
167 Vt. 565, 566, 701 A.2d 1055,
1056 (1997) (mem.) (“While not slavish adherents to stare
decisis, we generally
require more than mere disagreement to overturn a decision.”
(citation omitted)).
¶
39.        
Finally,
defendant claims that
this Court requires a record colloquy for the waiver of other rights,
and that
the right to testify should be treated in the same fashion. 
Defendant
correctly notes that we require a personal waiver based on a record
colloquy
for a defendant to waive the right to counsel, State v.
Pollard, 163 Vt.
199, 206-07, 657 A.2d 185, 190-91 (1995), or the insanity defense, State
v.
Brown, 2005 VT 104, ¶ 39, 179 Vt. 22, 890 A.2d
79.  This Court examined a
similar argument in Mumley.  153 Vt. at
305-06, 571 A.2d at 45.  In Mumley,
we distinguished the waiver of the right to testify from the waiver of
the
right to counsel.  “In right-to-counsel cases, the
[trial] court is obligated
to make special efforts to determine the validity of the
defendant’s waiver
precisely because the defendant has no counsel.”  Id. 
Similar logic
applies to the requirement of a record colloquy for the waiver of the
insanity
defense.  A record colloquy is required because there is a
public interest in
protecting “an insane person from being held culpable for his
actions.”  Brown,
2005 VT 104, ¶ 36 (quotation omitted).  In addition,
there is a fear that a
potentially insane defendant may be unable to make a rationale
decision, particularly
where the defendant has little bargaining power.  Id.
¶ 38.
¶
40.        
These
factors are not present in
this case.  Defendant was adequately represented by
counsel.  “Where the
defendant has competent counsel, the court need be less solicitous;
counsel herself
may be expected to advise the defendant of the benefits and drawbacks
of
various trial strategies.”  Mumley,
153 Vt. at 306, 571 A.2d at 45.  As
the Court of Appeals for the Second Circuit has concluded, effective
counsel
includes the duty to inform the defendant of the right to
testify.  Artuz,
124 F.3d at 79.  
¶
41.        
We
are concerned about the effect
of interfering in the attorney-client relationship with respect to this
issue. 
In deciding not to require a record colloquy for the waiver of the
right to testify,
the New Jersey Supreme Court reasoned that the right to testify is
counterpoised
by the right not to testify, and requiring the trial judge to conduct a
record
colloquy might be an inappropriate intrusion on a tactical decision
more
appropriately made by the client and the attorney.  State
v. Savage, 577
A.2d 455, 472-73 (N.J. 1990).  We agree that the decision
whether to testify is
best made by the defendant with the advice and assistance of
counsel.  See Artuz,
124 F.3d at 79.  
¶
42.        
In
this case, defendant failed to
reveal his desire to testify either before or at trial.  He
finally raised the
issue in his motion to dismiss counsel, but that came well after the
jury
returned a verdict of guilty.  Having failed to assert the
right in a timely
fashion, he has waived it.  See Mumley,
153 Vt. at 305, 571 A.2d at 45; Mecier,
143 Vt. at 28, 460 A.2d at 475.  He cannot now claim that his
right to testify
has been infringed.
Affirmed.

 


 


FOR
THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 


[1] 
The tape is very difficult to hear.  As we note infra,
the debate at
trial, to the extent there was one, focused on whether the tape showed
that
defendant was intoxicated and not on the words spoken by defendant or
the
officer.  The record does not show whether the jury would have
been able to
discern the words spoken.


[2] 
We note that courts in other states have found no violation where the
state
offered evidence of silence for a purpose other than as a direct
inference of
guilt.  See, e.g., Sampson v. State, 122
P.3d 1255, 1262 (Nev. 2005)
(isolated, unsolicited comment from witness that there was no
questioning of
defendant because he requested an attorney was not intended to
“draw a meaning
from silence” and not grounds for reversal); State
v. Smallwood, 561
P.2d 600, 601-03 (Or. 1977) (where defendant did not deny that he
stabbed the
victim, evidence that he refused to discuss details of offense with a
psychiatrist was not reversible because there “was no real
likelihood that any
adverse inferences were drawn by the jury”); Teniente
v. State, 2007 WY
165, ¶ 23, 169 P.3d 512 (prosecutor does not comment on the
defendant’s invocation
of his right to silence if he does not use the silence to the
state’s advantage
and argue that it shows guilt, and there is no prejudice to the
defendant).


[3] 
Under the procedure adopted by the trial court, fourteen jurors heard
the
evidence without designation of which were alternates.  Two
were to be chosen
by lot to be dismissed.  The trial court dismissed juror
number fourteen
although this juror was not selected by lot for dismissal. 
Other than
describing the events and claiming that the trial court should have
questioned
juror fourteen, defendant has not argued that the dismissal of juror
number
fourteen was error.


[4] 
The relevant portion of Rule 24(d) is virtually identical to Federal
Rule of
Criminal Procedure 24(c) as it existed before amendment in
2002.  


[5] 
The asserted error in this argument is different from that with respect
to
juror number fourteen, the juror whom the defense counsel identified as
having
seen the image of defendant in shackles on the monitor.  In
essence, the court
dismissed that juror for cause, in variance from the plan to dismiss
two jurors
chosen by lot.  As we held in Lambert,
however, any error in this action
is harmless as a matter of law.  2003 VT 28, ¶ 10.


[6] 
We acknowledge that defendant argued at oral argument that he did
preserve the
issue of his right to testify through his withdrawn motion to dismiss
defense
counsel.  However, defendant never argued, in his brief or
otherwise, that he
properly invoked and was denied his right to testify under Mecier. 
Consequently, we have not addressed the argument that defendant invoked
but was
denied his right to testify.     


