By Andrew Delaney
Mr. Gagne, in an apparent fit of road rage, “chased a couple across town, eventually pulling up next to their truck and pointing a rifle at them.” He filed a motion to suppress his alcohol breath test based on lack of a meaningful opportunity to consult with counsel. He believed that he was being recorded during his phone call. As it turns out, he was. The trial court denied the motion. Mr. Gagne was tried and a jury convicted him of “aggravated assault, simple assault, reckless endangerment, driving under the influence, and negligent operation of a vehicle.”
He appeals, arguing that (1) the trial court should’ve granted his motion to suppress; (2) the jury instructions were wrong; and (3) the aggravated assault, simple assault, and reckless endangerment convictions for the same conduct violate double jeopardy. The SCOV reverses the suppression ruling; upholds the jury instructions; and kicks out the simple assault charge on double jeopardy grounds.
Let’s go back to the beginning, shall we?
The complainants are an elderly couple. They’d left their house in their truck to go to the Walmart. Wife was driving when Mr. Gagne pulled out in front of her, making a left-hand turn. She slammed on the brakes and honked at him. Mr. Gagne flipped her “the bird” and went on his way in the opposite direction. Under most circumstances, that would’ve been the end of it.
Not this day. Mr. Gagne decided to follow them. At an intersection, Mr. Gagne pulled up to the right alongside the truck and yelled obscenities at the couple. Or—to employ a turn of phrase I learned last week from another opinion—let forth “a spew of billingsgate.” When the light changed, Mr. Gagne went right and the couple went left.
The Mr. Gagne made another appearance in the rearview mirror. Wife was scared because Mr. Gagne looked “angry with large eyes.” They rang 911 and stayed on the phone with the dispatcher for the rest of the incident.
After a few more lights, Mr. Gagne pulled up in the right-hand-turn lane. At this point, wife saw him point a rifle at her husband. Due to Mr. Gagne’s behavior, wife thought they were going to die. When the light went green, she was relieved that Mr. Gagne turned right.
When the couple got to the turn for Walmart, defendant made another tailgating appearance. They turned around and headed toward to police station. There was one more gun flash before Mr. Gagne was apprehended.
The arresting officer testified that he saw a gun on the seat and two empty beer bottles when he arrested Mr. Gagne. He smelled booze and noticed that Mr. Gagne was unbalanced on his feet.
Normally, the police turn off the recording during the “lawyer call” that’s part of DUI processing. In this case, they didn’t, and Mr. Gagne mentions that “it’s all being recorded,” and says “I have no rights.” After a thirty-minute conversation with an on-call lawyer, the officer told Mr. Gagne his time was up. He took a breath test and was over the limit.
As defendants often do, he moved to suppress the breath test results. Mr. Gagne argued that his belief that he was on Candid Camera deprived him of a meaningful opportunity to consult with counsel.
The trial court didn’t buy it. While the trial court reasoned that “this consultation must be meaningful and reasonably private,” privacy ain’t absolute and Mr. Gagne’s belief that he was being recorded wasn’t objectively reasonable.
So, after the trial and multiple convictions, Mr. Gagne appeals.
The motion-to-suppress standard of review discussion is interesting. The State tries to say the reasonableness-of-the-belief ruling was a factual finding. SCOV ain’t buying that. The SCOV reasons that the reasonableness of Mr. Gagne’s belief under the circumstances is a legal conclusion and thus subject to de novo review.
The SCOV explains that when “the police unjustifiably monitor a defendant’s conversation with counsel, and thereby limit the defendant’s ability to meaningfully engage with counsel, that conduct violates” subsection c of this statute. The whole idea behind the statute is to ensure free and private communication with counsel.
The SCOV notes that whether the feeling of lack of privacy caused inhibition is viewed with an objective lens. So, if a defendant doesn’t think he’s being recorded but finds out later that he was, that’s not going to cut the mustard on a motion to dismiss. The key is whether the conversation is inhibited—and in that factual scenario it’s a what-he-doesn’t-know-won’t-hurt-him analysis. On the other hand, if a defendant thinks he’s being recorded even if the audio is actually turned off, this can inhibit the consultation. If the conversation is objectively inhibited, then suppression is required.
The SCOV concludes that Mr. Gagne’s belief in this case was reasonable and likely inhibited his conversation. Accordingly, the SCOV concludes that the motion to suppress should’ve been granted and reverses the DUI conviction. Sometimes it pays to be a little paranoid.
The SCOV next turns to the jury instructions on the aggravated assault charge—specifically the intent piece. Here, when instructing the jury the trial court told the jurors that in order to find Mr. Gagne guilty, they’d have to find that he placed another person in fear of bodily injury. But the written instructions said they’d have to find Mr. Gagne “intended to place another person in fear of imminent bodily injury.”
Mr. Gagne’s argument on appeal is that a threat is “evaluated from the perspective of a reasonable person and not on the basis of whether the complaining witnesses felt threatened.” With jury instructions, the SCOV looks at whether the instruction as a whole gives the “true spirit and doctrine of the law.” A jury-instruction-based reversal comes around only if it undermines confidence in the jury’s verdict.
The SCOV notes that defendant has the threat-is-evaluated-from-the-reasonable-person’s-view point correct. The SCOV also agrees with Mr. Gagne that the portion of the spoken instruction that stated the jury must find that Mr. Gagne “placed another person in fear of imminent bodily injury” was not getting at the proper standard.
But then the SCOV splits paths and concludes that any error was harmless in context of the overall instruction and this case’s record.
The SCOV gives several reasons for its conclusion. First, the trial court’s definition of threaten got to the reasonable person standard. Second, when we get to the simple assault by menace instruction—coming soon—the court “expressly noted that the State did not have to prove that the victim actually was in fear of serious bodily injury,” and was therefore clear that the complainant’s subjective intent was not a factor. The SCOV reasons that the conviction on this properly-charged count is indicative that the jury didn’t get confused. Third, the written instructions didn’t contain the mistake. Finally, the SCOV reasons that Mr. Gagne’s prejudice argument is a wee bit far-fetched: “Even if the court’s omission was error, defendant was only harmed if a reasonable jury could conclude on this evidence that defendant's following the couple through town and pointing a gun at them while next to them at a stop light would not cause a reasonable person to fear imminent bodily harm.”
There is a pretty clever argument that because the complainants were in a truck—and therefore could look down and see the gun whereas someone in a car could not—their fear was subjective and not objective. The SCOV acknowledges the argument but is not persuaded.
We then turn to the simple-assault-by-physical-menace instruction. Again, the argument is that the instruction failed to impart the assessed-from-a-reasonable-person’s-view requirement. Here, the SCOV notes that there was not an objection below and that puts us in plain-error land. Reversals in plain-error land are like oases in the desert—few and far between.
Here the SCOV says: “The trial court's simple assault instruction does not constitute plain error, if error at all.” Whereas the aggravated-assault instruction had a bit of a flub, this one specifically included an aside that subjective fear was not the controlling standard. No plain error here.
Finally, we get to double jeopardy. Mr. Gagne argues that he can’t be convicted of aggravated assault with a deadly weapon, simple assault by physical menace, and reckless endangerment because of double-jeopardy. He asks the SCOV to toss the greater convictions.
The applicable test here is the Blockburger test. We’ve brought Yosemite Sam in to explain it before, but rather than potentially aggravate the WB’s copyright team, we’ll explain it like so: if a crime’s elements are all necessarily contained within another crime’s elements, then double jeopardy applies, and one of the charges goes away, gol-dang it.
This is a question of law and the SCOV applies a do-what-we-want-on-de-novo standard of review.
First, the SCOV compares aggravated assault and reckless endangerment. Mr. Gagne argues that the same elements are required but the SCOV concludes that each charge has a separately required element. The SCOV reasons that aggravated assault requires proof of intent to threaten others but no proof of actual danger. Reckless endangerment requires proof of actual danger.
In other words, pointing an unloaded gun at someone might be enough for an aggravated assault charge, but not enough for reckless endangerment. As long as there’s an outside-the-other element, then the charges pass the Blockburger test.
On the aggravated and simple assault comparison, Mr. Gagne fares a little better though not as well as he’d hoped. The parties agree that the same elements are involved and that one charge can’t stand. But Mr. Gagne wants the aggravated assault charge to go away, while the State says he was convicted of both, so the lesser conviction should be vacated.
The SCOV goes with the State’s argument. The SCOV explains that one of the harms double-jeopardy preclusion seeks to address is multiple punishments for the same offense. The only thing we’re trying to do (or allowed to do if you will) is avoid total punishment that exceeds what was authorized by the legislature.
Applying these principles and taking the State’s position into consideration, the SCOV affirms the aggravated assault conviction and vacates the simple assault hit.
So, to recap: the DUI gets a reversal because the motion to suppress should’ve been granted. The jury instructions were okay; aggravated assault and reckless endangerment hold up; and simple assault gets tossed.
Drive safe, folks.