State v. Boise, 498 A.2d 495 (Vt. 1985). · Go Syfert
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State v. Boise, 498 A.2d 495 (Vt. 1985). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case, last quoted 1986 · …a general instruction that a defendant who wishes to testify is a competent witness and that his testimony is to be judged in the same way as that of any other witness does not impermissibly single out the defendant. at p. 497 ✓
cited 2× by 1 distinct case · …he claimed error was fairly presented to the trial court for corrective action, and so has been preserved for appeal. at p. 496 ✓
36 citation events (20 in the last 25 years) across 3 distinct courts.
Strongest positive: Percival v. People (virginislands, 2015-01-07)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 10 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Percival v. People (2×) also: Cited as authority (quoted)
virginislands · 2015 · quote attribution · 2 verbatim quotes · confidence high
he claimed error was fairly presented to the trial court for corrective action, and so has been preserved for appeal.
examined Cited as authority (verbatim quote) State v. Peters (3×) also: Cited as authority (quoted), Cited as authority (rule)
Vt. · 1986 · signal: see · quote attribution · 2 verbatim quotes · confidence high
a general instruction that a defendant who wishes to testify is a competent witness and that his testimony is to be judged in the same way as that of any other witness does not impermissibly single out the defendant.
discussed Cited as authority (rule) State v. John R. Lyddy II
Vt. · 2025 · confidence medium
See id. ¶¶ 8-9; State v. Boise, 146 Vt. 46, 48 , 498 A.2d 495, 496 (1985) (holding that erroneous instruction to jury that element of crime had been conceded was not harmless because instruction “removed an element from the jury’s consideration”).
discussed Cited as authority (rule) State v. Jackowski
Vt. · 2006 · confidence medium
In State v. Boise, we held that the trial court's erroneous jury instruction-informing the jury that the defendant conceded to operating his vehicle on a public highway-was not harmless because it "removed an element from the jury's consideration." 146 Vt. 46, 48 , 498 A.2d 495, 496 (1985).
discussed Cited as authority (rule) State v. Jackowski
Vt. · 2006 · confidence medium
In State v. Boise, we held that the trial court’s erroneous jury instruction — informing the jury that the defendant conceded to operating his vehicle on a public highway — was not harmless because it “removed an element from the jury’s consideration.” 146 Vt. 46, 48 , 498 A.2d 495, 496 (1985).
discussed Cited as authority (rule) State v. Lambert
Vt. · 2003 · confidence medium
As we noted in State v. Koveos, 169 Vt. 62, 66 , 732 A.2d 722, 725 (1999), our recent decisions “reflect a strong policy against finding categories of errors as plain per se, such that preservation is not required for appellate intervention.” Thus, although earlier decisions suggest that instructing *281 the jury that an element of the offense has been conceded is plain error per se, see State v. Noyes, 147 Vt. 426, 428 , 519 A.2d 1152, 1153 (1986); State v. Boise, 146 Vt. 46, 48 , 498 A.2d 495, 496 (1985), we have specifically rejected applying plain error per se to omission of elements o…
discussed Cited as authority (rule) State v. Anderson (2×)
Vt. · 1989 · confidence medium
State v. Boise, 146 Vt. 46, 48 , 498 A.2d 495, 496 (1985).
cited Cited as authority (rule) State v. Roy
Vt. · 1989 · confidence medium
Defendant argues that this Court has already adopted such a standard in State v. Noyes, 147 Vt. 426, 428 , 519 A.2d 1152, 1153 (1986), and State v. Boise, 146 Vt. 46, 48 , 498 A.2d 495, 496 (1985).
discussed Cited as authority (rule) State v. Noyes
Vt. · 1986 · confidence medium
In State v. Boise, 146 Vt. 46, 48 , 498 A.2d 495, 496 (1985), we recently held that “[a]n instruction which informs the jury that [an] element of the crime [of DUI] has been conceded, when in fact it was not, improperly relieves the State of its burden.” In Boise , the trial judge expressly instructed that defendant had conceded an element of the crime, when in fact he had not.
discussed Cited "see" State v. Larose (2×)
Vt. · 1988 · signal: see · confidence high
See State v. Boise, 146 Vt. 46, 48 , 498 A.2d 495, 496 (1985).
Retrieving the full opinion text from the archive…
State of Vermont
v.
Bryan R. Boise
83-475.
Supreme Court of Vermont.
Jun 7, 1985.
498 A.2d 495
John T. Quinn, Addison County Deputy State’s Attorney, Middlebury, for Plaintiff-Appellee., Robert P. Keiner, James A. Dumont, and Bonnie Barnes, Legal Intern (On the Brief), of Sessions, Keiner & Dumont, Middle-bury, for Defendant-Appellant.
Allen, Hill, Underwood, Peck, Gibson.
Cited by 14 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: bottom 75%
Citer courts: Supreme Court of The Virgin Is… (1) · Supreme Court of Vermont (1)
Allen, C.J.

Upon appeal from a conviction of driving while intoxicated, 23 V.S.A. § 1201(a)(2), defendant contends that the court’s instructions to the jury removed from its consideration an essential element of the crime, and unfairly singled out the defendant’s testimony for comment as to its credibility. The defendant’s conviction is reversed and the cause remanded for a new trial.

The testimony at trial indicated that the state police stopped the defendant after observing him drive erratically on Route 7 and Creek Road in Middlebury. The defendant was taken to the state police barracks where a breath sample was taken, which was subsequently found to indicate a blood alcohol content of .13 percent at the time of operation. The arresting officer testified that both Route 7 and Creek Road are public highways.

The defendant’s first claim of error is that the court’s instructions to the jury removed from its consideration an essential element of the offense, that the operation of the automobile was upon a public highway. The court stated:

Now, as to the first two [elements] there is no dissension [sic], I don’t think, between counsel. There’s no question but what the Defendant, by his own admission, was operating a motor vehicle. As a matter of fact, I instruct you that Route 7 and the Creek Road so called are public highways within the meaning of the definitions of the Vermont statutes.

After discussing the third element, intoxication, the court stated:

[*48] This [third] element like the other elements normally would still have to be proved by the State beyond a reasonable doubt [despite the permissible inference from the blood alcohol content test]. The other two elements are conceded.

Following these instructions, the defendant’s counsel objected, stating, “we have not entered into any stipulation those are public highways.” The court replied, “I said as a matter of law they are public highways. Take judicial notice of it. Also was testimony from the police officers they are public highways.” This exchange demonstrates that, contrary to the State’s claim, the claimed error was fairly presented to the trial court for corrective action, and so has been preserved for appeal. State v. Darling, 140 Vt. 491, 496, 442 A.2d 455, 458 (1981).

It is axiomatic that the State must prove every element of the crime charged beyond a reasonable doubt. State v. Dusablon, 142 Vt. 95, 97, 453 A.2d 79, 81 (1982). It was incumbent upon the State to prove the operation of the vehicle “on a highway.” 23 V.S.A. § 1201(a)(2). An instruction which informs the jury that this element of the crime has been conceded, when in fact it was not, improperly relieves the State of its burden. Thus the charge was in error.

The State here urges that, since the jury was instructed that it must find beyond a reasonable doubt the existence of the three elements of the crime charged before rendering a guilty verdict, the error was in fact harmless. While not all errors, even those of constitutional magnitude, require reversal, Chapman v. California, 386 U.S. 18, 22 (1967), the instruction at issue here removed an element from the jury’s consideration. Such an error cannot be harmless. See State v. Martell, 143 Vt. 275, 279-80, 465 A.2d 1346, 1348 (1983) (harmless error can never be found where an instruction creates a conclusive presumption on an element of a crime).

This holding makes it unnecessary to consider whether the defendant was prejudiced by the court’s instruction that the defendant’s testimony should be considered in the light of his interest in the outcome of the trial. However, it is the better practice not to give such an instruction. A defendant who fears that his credibility will, in effect, be singled out for attack on the grounds that he is the defendant may hesitate to testify at all. In such a case, his right to testify in his own behalf may be. unduly bur[*49] dened. See, e.g., In re Mecier, 143 Vt. 23, 27-28, 460 A.2d 472, 475 (1983) (recognizing such a right); 13 V.S.A. § 6601; Alicea v. Gagnon, 675 F.2d 913, 921 (7th Cir. 1982) (federal constitution grants right to testify in own behalf); Vt. Const. Ch. I, Art. 10 (defendant has right to be heard “by himself and his counsel”).

Moreover, an instruction focusing upon the defendant’s interest in the outcome of the trial as bearing upon his credibility may encroach upon the presumption of innocence. An innocent defendant, testifying truthfully, has the same interest in the outcome of the trial as a guilty defendant, testifying untruthfully. Yet in both cases, the jury is told that the fact that the defendant is on trial is relevant to his credibility.

A general instruction that a defendant who wishes to testify is a competent witness and that his testimony is to be judged in the same way as that of any other witness does not impermissibly single out the defendant.

Reversed and remanded for a new trial.