Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2010-319

                                         APRIL TERM, 2011

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }
    v.                                                 }    Superior Court, Washington Unit,
                                                       }    Criminal Division
                                                       }
 Wallace Nolen                                         }    DOCKET NO. 443-4-09 Wncr

                                                            Trial Judge: Brian J. Grearson

                          In the above-entitled cause, the Clerk will enter:

       Defendant appeals his convictions on three counts of careless and negligent operation
following a jury trial. On appeal, defendant argues that he is entitled to a new trial because the
prosecutor made impermissible statements about defendant’s credibility during closing
arguments. We affirm.

       In April 2009, defendant was charged with three counts of each careless and negligent
operation and attempted simple assault. The charges arose out of incidents involving defendant
and a United States Postal Service (USPS) worker. A jury trial was held in March 2010.

        The USPS carrier testified at trial concerning the three incidents that occurred in
February and March 2009. First, the carrier testified that while he was walking to deliver mail,
he observed defendant’s vehicle purposefully swerve at him, soaking him with spray from a
puddle. He stated that he observed defendant give him the finger as he drove by.∗ Second, the
carrier testified that on a different day when he was driving back to the post office, defendant
was driving in the opposite direction and swerved toward him. According to the carrier, he had
to swerve right to avoid defendant’s oncoming car. Again, he alleged that defendant gave him
the finger. Finally, the carrier testified that on a third day he was finishing his deliveries when he
observed defendant’s vehicle approaching him. The carrier observed defendant take both hands
off of the wheel to give him the finger. He stated that defendant had to scramble to grab the
steering wheel back and not run into the carrier.

       At the close of the State’s case, defendant moved for a judgment of acquittal, arguing that
the State failed to make a prima facie case. The court granted the motion for the attempted
simple assaults based on the first two incidents, and dismissed those two charges.



         ∗
           As used by the parties both at trial on appeal, this phrase describes the offensive act of
lifting one’s middle finger at someone else.
        The case proceeded on the remaining four charges, and defendant testified on his own
behalf. Defendant recounted an ongoing dispute with the USPS about delivery of mail to his
home, but he denied any wrongdoing related to the USPS carrier. He recounted his version of
the events on the days in question. As to the first incident, he stated that he had not seen the
carrier on that day, but may have gone through a puddle at that location. He remembered
passing the carrier on the second occasion, but claimed any swerving was done to avoid potholes
in the road. He also remembered the third encounter and again explained that he moved out of
his lane to maneuver around potholes, but denied he took his hands off of the wheel. During
cross-examination, defendant described the conversation he had with police when they first came
to his house to ask him some questions about the postal carrier:

              I said, “What have I supposedly . . . done to this [USPS carrier]?” .
              . . . [The police] said, “Oh, you’re giving him the finger.” And I
              said, “What do you mean I’m giving the finger?” I said, “Let’s
              assume that, for argument’s sake, that I was giving him the finger,”
              which I flatly deny and I denied at that point, I said, “The U.S.
              Supreme Court has said giving the finger to somebody is protected
              speech.”

       Later, the following exchange took place between the prosecutor and defendant:

              [Prosecutor]: But when you are on the streets, you use your
              protected form of speech to let [the USPS carrier] know how angry
              you are.

              [Defendant]: That’s only happened a couple of times and most of
              the time, if anything, he’s giving it to me and I give it back to him
              just as a—you know, “Hello,” you know?

              [Prosecutor]: You said a couple of times, but a little while back
              you said you’ve never—

              [Defendant]: Never in these three instances did I give him the
              finger. That was the question that I was asked.

              [Prosecutor]: But you’ve done it multiple times:

              [Defendant]: Sure. Maybe five, six, seven times at most, over the
              whole period.

        During her closing rebuttal, the prosecutor made the following statement concerning the
credibility of defendant:

              [Defendant] sat here and lied to you. He said, “I have never ever
              flipped [the USPS carrier] the bird.” And, see, the importance of
              the bird, it shows his state of mind. His anger. . . . He says, “I have
              never.” And then later he tells you, “Well, maybe a couple times.”
              And then he says, “Oh, no, that was six or seven times.” You want
              to talk about credibility? Use your common sense

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Defendant did not object to this statement. The court instructed the jury on the charges, and
specifically charged the jury not to consider the statements of counsel as evidence. Defendant
was convicted on all three counts of careless and negligent driving, but acquitted on the
remaining count of attempted simple assault.

       Defendant filed a motion for a new trial, alleging several grounds including that the
prosecutor made improper statements about his credibility during closing argument. Because
defendant also raised claims of ineffective assistance, including counsel’s failure to object to
prosecutor’s closing argument, the court assigned new counsel. The court held a series of
hearings on defendant’s motions. At the final hearing on June 28, 2010, the court rendered a
ruling on the record. The court concluded, based on its review of the record, that the
prosecutor’s single statement during rebuttal did not amount to plain error, especially in light of
the court’s instruction that counsel’s arguments are not evidence and that the issue of whether
defendant gave the carrier the finger was not central to the defense.

       Defendant appeals. Because defendant did not object at trial, he argues now that the
prosecutor’s comments about his credibility during closing statements amount to plain error.

        Plain error requires “a showing that the error strikes at the heart of defendant’s
constitutional rights or results in a miscarriage of justice.” State v. Ayers, 148 Vt. 421, 426
(1987). “[I]n the context of a challenge to a closing argument, a finding of plain error is
supported only when the defendant establishes that the prosecutor’s closing argument was not
only improper, but also that it impaired the defendant’s right to a fair trial.” State v. Rehkop,
2006 VT 72, ¶ 37, 180 Vt. 228 (quotation and alteration omitted).

       We conclude that the prosecutor’s statements did not rise to plain error. We consider
“several nonexclusive factors” in assessing whether a prosecutor’s statement requires reversal
including:

               the blatancy of the challenged statement, the impact on the theory
               of the defense, the persistence and frequency of the statement, the
               opportunity for the court to minimize potential prejudice, the
               strength of the evidence supporting the relevance of the statement,
               the overall strength of the State’s case, the apparent motivation for
               making the remarks, and whether the statement was inflammatory
               and attacked defendant’s character.

State v. Hemond, 2005 VT 12, ¶ 12, 178 Vt. 470 (mem.) (citation omitted). In this case, the
factors weigh against reversal. This was a single statement made in rebuttal. Cf. Ayers, 148 Vt.
at 424-25 (concluding prosecutor’s statements amounted to plain error where prosecutor made a
number of statements expressing a personal opinion that defendant’s version was false and other
witnesses were believable). The prosecutor commented on the inconsistencies in defendant’s
testimony and drew inferences from those inconsistencies. While defendant claims that his
testimony did not create such inconsistencies, there is factual support in the record for the
prosecutor’s statements. See State v. Billado, 141 Vt. 175, 181-82 (1982) (recounting general
rule that counsel may “comment on evidence properly admitted at trial” and “draw legitimate
inferences from the record” (quotation omitted)). Further, the statement did not go the heart of
the defense. It was about whether defendant had given the finger to the postal carrier—a fact

                                                3
that was separate from the charged conduct of careless and negligent operation. Further, the
court minimized the prejudice by instructing the jury not to consider statements of counsel as
evidence. Thus, we conclude there was no plain error and no grounds for a new trial.

       Affirmed.

                                           BY THE COURT:


                                           _______________________________________
                                           Paul L. Reiber, Chief Justice

                                           _______________________________________
                                           Marilyn S. Skoglund, Associate Justice

                                           _______________________________________
                                           Brian L. Burgess, Associate Justice




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