Vielot v. State

REED, J. Appellant, Yuri Marie Francois Vielot, Jr., was tried and convicted by a jury on September 23 and 24, 2013, in the ⁴⁹⁷ Circuit Court for Charles County of two counts of manslaughter by motor vehicle in violation of Md.Code Ann. (2011 Supp.), Criminal Law Article • (“CL”) § 2-209(b). The circuit court sentenced appellant to concurrent sentences of ten years with eighteen months suspended, and five years’ probation. Appellant now appeals his convictions and presents the following questions for our review: 1. Did the trial court err in finding that a key State’s witness, Doreen Pavese, was unavailable for purposes of admitting her former testimony pursuant to Maryland Rule 5—804(b)(1)? 2.

Did the trial court err in instructing the jury that the “deliberate failure of a driver to heed clear warning signs of drowsiness is evidence of reckless disregard for human life?” 3. Was the evidence sufficient to sustain appellant’s convictions? For the reasons set forth below, we affirm the judgments of the circuit court. Factual and Procedural Background The first trial of this case took place on July 16, 2012, but the jury failed to return a verdict.

A second trial was held on September 23, 2013. This time, the jury convicted appellant of two counts of automobile manslaughter. Appellant worked the night shift at HH Gregg. Generally, he would leave for work at 6:00 p.m., work until 6:00 a.m. the next day, and return home at 7:00 a.m.

Appellant’s wife testified that he was in the habit of sleeping all day and then getting up around 6:00 p.m. to go to work. On October 21, 2010, at approximately 1:10 p.m., appellant was driving his 2004 Volkswagen SUV from TGI Friday’s along Maryland 228 to bring his wife lunch at her place of employment. Appellant fell asleep at the wheel, traveled off the roadway onto the median, and struck a sign and three men who were working by the side of the road. The three men were Leonel Bergama, Erick Alvarado, and Marlon Lorenzo. ⁴⁹⁸ Alvarado and Lorenzo died from injuries caused by the accident.

Berganza survived. The men, who worked as landscapers for Colossal Construction, were on the median cutting the grass and picking up garbage. It is undisputed that they were all wearing the proper safety gear. Corporal Steven Van Bennekum, accident reconstructionist for the Maryland State Police Crash Team, testified to what happened at the accident scene.

In his report, he concluded that the distance between Friday’s and the scene of the accident is approximately five miles and it would take approximately seven minutes to get there driving the speed limit, which was 55 miles per hour. Corporal Van Bennekum testified that the speed analysis confirmed that appellant drove at approximately 42-50 miles per hour. He also confirmed that appellant was not under the influence of drugs or alcohol at the time of the accident. At trial, he testified that the grass at the accident scene had signs of rolling resistance marks up until the sign that appellant hit.

Rolling resistance marks show that the vehicle was not braking. Corporal Van Benne-kum testified that the marks changed from rolling resistance marks to skid marks after the sign. The skid marks indicate the point at which appellant started to brake. The evidence also demonstrated that appellant told both a State Trooper and the physician’s assistant at the hospital that he slept for 2 hours the night before the accident.

In addition, Doreen Pavese testified for the State at the first trial that appellant failed to maintain his lane for approximately one half to one mile before the accident. Although Ms. Pavese did not testify at the second trial due to injuries she sustained in an unrelated car accident, her testimony from the first trial was nevertheless admitted under the former testimony exception to the hearsay rule. DISCUSSION I. Unavailability of Witness A. Parties’ Contentions Appellant contends that the trial court erred in applying Md. Rule 5-804(a)(4) when it concluded that Doreen Pavese ⁴⁹⁹ was unavailable for the purposes of admitting her former testimony. Appellant argues that the State’s evidence did not establish that Ms. Pavese was unable to travel, but only that she could not drive.

Appellant asserts that because Ms. Pavese was able to travel "within New Jersey to physical therapy, she also could have travelled interstate. Appellant argues that “scores of witnesses, ranging from children, to the elderly, to the physically challenged, are unable to drive, yet they appear, or are made to appear, for the purposes of testifying.” Appellant agrees that the claim of unavailability is reviewed by this Court under the abuse of discretion standard, but he nevertheless asserts that the trial court erred in the “legal conclusion” that Ms. Pavese was unavailable. Appellant also contends that because Ms. Pavese was a key witness to the State and her former testimony contained inconsistencies, he had the right to cross examine her under Md. Rule 5—804(b). Appellant points out that when State Trooper Zimmerman asked Ms. Pavese at the accident scene to write down what she saw, she wrote that she observed appellant drifting into her lane and that the next thing she saw was his vehicle going onto the median, striking a sign, and then hitting two people.

Appellant contends that this written statement is inconsistent with Ms. Pavese’s former testimony, in which she stated that she observed appellant drifting between lanes for one half to one mile before the accident. Lastly, appellant asserts that the claim of unavailability under Md. Rule 5-804(a)(5) is not satisfied because the State did not take any steps to procure the declarant’s attendance as required by the rule. The State responds that the trial court correctly admitted Ms. Pavese’s former testimony under Md. Rule 5-804(a)(4) because her unavailability resulted from being in an unrelated car accident which impaired her arm’s mobility to such an extent that she could not travel. The State provided the trial court with a note from her doctor and a disability certificate that indicated that she could not drive or work. ⁵⁰⁰ The State also contends that the note from Ms. Pavese’s doctor, together with the disability certificate, proved that she did not willfully fail to appear in court, and therefore eliminated any need to obtain a body attachment or procure her by other legal means.

B. Standard of Review Trial judges are typically afforded “broad discretion in the conduct of trials in such areas as the reception of evidence.” Void v. State, 325 Md. 386, 393 , 601 A.2d 124 (1992) (quoting McCray v. State, 305 Md. 126, 133 , 501 A.2d 856 (1985)). Under this standard, we normally “extend the trial court great deference in determining the admissibility of evidence and will reverse only if the court abused its discretion.” Hopkins v. State, 352 Md. 146, 158 , 721 A.2d 231 (1998) (citation omitted). We apply a different standard, however, when it comes to hearsay evidence. The Court of Appeals has held that “[w]hether evidence is hearsay is an issue of law reviewed de novo.” Gordon v. State, 431 Md. 527, 536 , 66 A.3d 647 (2013) (quoting Bernadyn v. State, 390 Md. 1, 8 , 887 A.2d 602 (2005)).

A trial court has “no discretion to admit hearsay in the absence of a provision providing for its admissibility.” Id. Therefore, “[h]earsay ... must be excluded as evidence at trial, unless it falls within an exception to the hearsay rule.” Gordon, 431 Md. at 535 , 66 A.3d 647 (quoting Bernadyn, 390 Md. at 8 , 887 A.2d 602 ). Yet, when reviewing what usually is the second step of any hearsay analysis—does the hearsay fall under any of the exceptions to the hearsay rule?—we apply a de novo standard to the trial court’s legal findings and a deferential standard to any factual findings that might be required: A hearsay ruling may involve several layers of analysis. Proponents of the evidence challenged on hearsay grounds usually argue (1) that the evidence at issue is not hearsay, and even if it is, (2) that it is nevertheless admissible.

The first inquiry is legal in nature. But the second issue may require the trial court to make both factual and legal ⁵⁰¹ findings. For instance, in determining whether evidence is admissible under the excited utterance exception to the hearsay rule, ... the trial court looks into ‘the declarant’s subjective state of mind’ to determine whether ‘under all the circumstances, [he is] still excited or upset to that degree.’ It considers such factors, as, for example, how much time has passed since the event, whether the statement was spontaneous or prompted, and the nature of the statement, such as whether it was self-serving. Such factual determinations require deference from appellate courts.

Id. at 536-37, 66 A.3d 647 (citation omitted). C. Analysis We hold that the trial court did not abuse its discretion in finding that Ms. Pavese was unavailable for purposes of admitting her former testimony under Md. Rule 5-804(b)(l). Before the court can admit former testimony under Md. Rule 5-804(b)(l), the court must find the declarant unavailable. Md. Rule 5-804(b) (“The following are not excluded by the hearsay rule if the declarant is unavailable as a "witness”).

Under Md. Rule 5-804(a)(4) and (5), a witness is unavailable when: (a) Definition of Unavailability. “Unavailability as a witness” includes situations in which the declarant: (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of the statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subsection (b)(2), (3), or (4) of this Rule, the declarant’s attendance or testimony) by process or other reasonable means. In a previous case involving this Rule, we noted that “[t]he prior testimony of an unavailable declarant may only be admitted if the declarant is truly unavailable. The party ⁵⁰² seeking the admission of the former testimony must demonstrate that it made a good faith effort to procure the unavailable declarant.” Alexis v. State, 209 Md.App. 630, 665 , 61 A.3d 104 (2013), aff'd, 437 Md. 457 , 87 A.3d 1243 (2014) (citation omitted); see also Breeden v. State, 333 Md. 212, 222 , 634 A.2d 464 (1993). Furthermore, “[although the State bears the initial burden of showing diligence and good faith in its effort to obtain the missing witness, the trial judge’s ultimate determination that the witness is, indeed, unavailable and that the rule has therefore been satisfied is subject to review by the abuse of discretion standard.” Muhammad v. State, 177 Md.App. 188, 298 , 934 A.2d 1059 (2007) (citation omitted).

Other jurisdictions that have reviewed the issue of admitting former testimony when the witness is unavailable for medical reasons have held that the judge must consider both the duration and the severity of the illness. With regard to duration, it is not essential to a finding of unavailability that the illness be permanent. The duration of the illness need only be in probability long enough so that, with proper regard to the importance of the testimony, the trial cannot be postponed. Burns v. Clusen, 798 F.2d 931, 937 (7th Cir.1986) (citing United States v. Amaya, 533 F.2d 188, 191 (5th Cir.1976)).

When medical problems are severe and chronic and doctors do not think the declarant is able to “endure the rigors of interstate travel[,]” the court’s conclusion that the declarant is unavailable is not an abuse of discretion. United States v. McGowan, 590 F.3d 446, 454-55 (7th Cir.2009) (citation omitted). Appellant’s contention that the trial court could not have found Ms. Pavese unavailable without satisfying both subsections (4) and (5) of Md. Rule 5-804(a) is without merit. If the proponent of former testimony takes the position that the witness “is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity,” Md. Rule 5-804(a)(4), that is all that need be ⁵⁰³ shown.

It is not also necessary for the proponent to show that he has been unable to procure the declarant’s attendance at the second trial, as subsections (4) and (5) of Rule 5-804(a), being separated by an “or,” are independent. Therefore, because the issue in the present case is whether Ms. Pavese (the declarant) was unavailable due to a then-existing physical condition, there is no need for the State to show that it sought a body attachment or any other means to procure her testimony. Ms. Pavese had been in an unrelated car accident between the first and second trials in which she suffered an injury to her rotator cuff and a torn ligament that rendered her arm immobile. As a result, she underwent shoulder surgery.

The State offered her disability certificate and a doctor’s note. These confirmed the injury and demonstrated that Ms. Pavese required extensive physical therapy and could not drive from New Jersey to Maryland. Because the State took the position that Ms. Pavese’s shoulder injury rendered her unavailable under Rule 5—804(a)(4), whether or not it satisfied subsection (5) of that Rule is irrelevant. While appellant argues that travelling locally within New Jersey to attend physical therapy is the same as traveling to Maryland, we are not persuaded.

Similar to the court in Bums, the trial court reviewed the note from the doctor and the disability certificate before finding Ms. Pavese’s condition sufficiently severe to restrict her travel. Therefore, the trial court did not abuse its discretion in holding that Ms. Pavese was unavailable. See Commercial Union Ins. Co. v. Porter Hayden Co., 116 Md.App. 605, 642-43 , 698 A.2d 1167 (1997) (holding the trial court did not abuse its discretion in finding witness unavailable for medical reasons where the State explained that the “[out-of-state] witness had tried to give a deposition in an unrelated case but had been unable to complete the deposition due to his health problems”).

Once the trial court determines that the witness is unavailable under Md. Rule 5-804(a), former testimony is admissible as a hearsay exception if the testimony was “given as a witness in any action or proceeding or in a deposition taken in compliance with law in the course of any action or proceeding, ⁵⁰⁴ if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” Md. Rule 5—804(b)(1). Appellant does not argue that he did not have “an opportunity and similar motive to develop [Ms. Pavese’s former] testimony by direct, cross, or redirect examination,” 1 id., but simply asserts that the trial court abused its discretion in finding Ms. Pavese to be unavailable under Rule 5-804(a). As we have already found that argument to be without merit, we therefore hold that the trial court did not abuse its discretion where it admitted Ms. Pavese’s former testimony under Rule 5-804(b)(1).

II

Jury Instruction A. Parties’ Contentions Appellant correctly contends that an appellate court should review the trial court’s jury instruction under the abuse of discretion standard. Appellant argues that the present case can be distinguished from Skidmore v. State, 166 Md.App. 82 , 887 A.2d 92 (2005), where the trial court generated the “deliberate failure” jury instruction, because the driver in that case admitted that he felt drowsy before driving and that he should not have gotten behind the wheel. Appellant argues that the State failed to produce any evidence to prove that he was aware of his drowsiness. Appellant contends that he only briefly swerved before falling asleep and that the fact that he fell asleep is not evidence that he felt drowsy.

Thus, appellant contends that the “deliberate failure” instruction should not have been read to the jury because he did not deliberately fail to heed to the clear warning signs of drowsiness. The State contends that an appellate court should affirm judgments unless the jury instructions given were “ambiguous, misleading, or confusing to the jurors.” The State argues ⁵⁰⁵ that the appellant had clear warning signs of drowsiness prior to the accident. Specifically, the State argues that appellant told the physician’s assistant in the emergency room and the State Trooper investigating the incident that he only had a couple hours of sleep before getting behind the wheel. The State also presented Ms. Pavese’s testimony, in which she stated that she observed appellant failing to maintain his lane for one half to one mile before the accident occurred.

Lastly, the State points to Corporal Van Bennekum’s testimony about the tire tracks changing from rolling resistance marks to skid marks. Therefore, the State argues that there was certainly “some evidence” produced at trial to generate the “deliberate failure” instruction. The State also contends that even if this Court finds that the “deliberate failure” instruction was inappropriate, then reversal of the appellant’s conviction is not required because appellant suffered no harm from the instruction. The State points out that the instruction provides strong language as to what constitutes “a reckless disregard for human life,” and therefore, if there was sufficient evidence to convict, the jury would not have been influenced by language from the jury instruction itself.

The State contends that at most the language was “superfluous,” and that the jury is entitled to be told the law in Maryland. B. Standard of Review We review the trial court’s decision refusing to offer a requested jury instruction under an abuse of discretion standard. However, a trial court must give a requested jury instruction where “(1) the instruction is a correct statement of law; (2) the instruction is applicable to the facts of the case; and (8) the content of the instruction was not fairly covered elsewhere in instructions actually given.” Dickey v. State, 404 Md. 187, 197-98 , 946 A.2d 444 (2008); see also Md. Rule 4-325(c). On review, jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and cover adequately the issues raised by the evidence, the defendant has ⁵⁰⁶ not been prejudiced and reversal is inappropriate.

Reversal is not required where the jury instructions, taken as a whole, sufficiently protected] the defendant’s rights and adequately covered the theory of the defense. Fleming v. State, 373 Md. 426, 433 , 818 A.2d 1117 (2003). “Thus, while the trial court has discretion, we will reverse the decision if we find that the defendant’s rights were not adequately protected.” Cost v. State, 417 Md. 360, 369 , 10 A.3d 184 (2010). C. Analysis The issue here is whether the court’s “deliberate failure” jury instruction was applicable under the facts of this case. Md. Rule 4-325 requires “that a requested instruction be given only when there is evidence in the record to support it.” Flores v. State, 120 Md.App. 171,193 , 706 A.2d 628 (1998) (quoting Hof v. State, 337 Md. 581, 612 , 655 A.2d 370