State v. HoldenState v. Holden
- Reporters:
- , ,
- Before:
- Billings
On June 10, 1976, an information was filed with the District Court of Vermont, Unit No. 2, Chittenden Circuit charging that the defendant-appellant, on May 26, 1976, at Essex, Vermont, “was then and there a person who, armed with a black and silver dagger and a Dаisy C02 pellet pistol, and stole in the presence of Sondra Lee Norton, said Sondra Lee Norton’s money, the subject of larceny, $350.00, all in violation of Title 13, V.S.A., Section 608(b).” On the day of trial, immediately prior tо the drawing of the jury, the State moved to amend the information so that it charged that the defendant “was then and there a person, who being armed with a dangerous weapon, to wit: a knife and a pellet pistol, assaulted another, to wit: Sondra Norton and did steal in her presence, to wit: $278 (Two Hundred Seventy-Eight Dollars), all in violation of Title 13, Section 608 (b), V.S.A.” The trial court granted the State’s motion, over defendant’s objeсtion, and proceeded to trial with the speed of the Concorde stating: “We are going to trial tоday.” Trial by jury was forthwith held, and defendant was convicted of armed robbery and assault. Defendant now appeals.
*160 Defendant alleges that the trial court erred in allowing the amended information or, in the alternative, in not allowing a requested continuance following the amendment of the information. He urgеs further that the court erred in not removing a juror for cause despite defendant’s repeated сhallenges on the ground that the juror had expressed an inability to accept the presumption оf defendant’s innocence, denying defendant his right to a trial by an impartial jury. Because of the trial court’s refusal to remove this juror for cause, defendant was obligated to exhaust his peremptory chаllenges to effect her removal, even though, as shown by the record, defendant desired to reserve his final peremptory challenge for another juror. Finally, defendant charges that the final argument of the State’s Attorney was improper.
An information must set forth the charge “with such particularity as will reasonably indicate the exact offense the accused is charged with, and will enable him to make intelligent preparation for his defense, and if the trial goes against him, to plead his conviction in a subsequеnt prosecution for the same offense.”
State
v.
Margie,
119 Vt. 137, 141, 120 A.2d 807, 810 (1956); see
*161 During the voir dire, one juror on three separate occasions expressеd her belief that a defendant had an obligation to prove his innocence. Although the State’s Attornеy through use of leading questions attempted to rehabilitate the juror, from our review of the record it is сlear that the juror was not comfortable with the presumption of innocence that attends the defendant throughout his trial. State v. Rowan, 246 La. 38, 47, 163 So. 2d 87, 91 (1964). The defendant has a constitutional right to a trial by an impartial jury. U.S. Const., amends. VI, XIV; Vt. Const., ch. I, art. 10. If upon examination a juror shows a state of mind evincing a fixed opinion, bias or prejudice, she is рroperly subject to challenge for cause. Lattrell v. Swain, 127 Vt. 33, 36, 239 A.2d 195, 197 (1968). If a prospective juror has a belief that a defendant carries any burden whatsoever of proving his innocence, that juror is removable for сause. Breeden v. Commonwealth, 217 Va. 297, 227 S.E.2d 734 (1976).
In the case at bar, the prospective juror did not actually sit on the jury, because the dеfendant exercised his last peremptory challenge to remove her. The record, howevеr, clearly indicates that there was at least one other juror that the defendant desired to remove by peremptory challenge. This distinguishes the instant case from Lattrell v. Swain, swpra, where not all of the peremptоry challenges were exercised. We hold that, on the record here, to force a defendant to use his last peremptory challenge to exclude a juror challengeable for causе, where defendant indicates that there is another juror that he desires to peremptorily challеnge, is reversible error. Breeden v. Commonwealth, supra.
Defendant claims that the State’s Attorney’s closing argument relative to the State’s impartiality in the case at bar and the people’s intolerance of armed robbery genеrally went beyond the bounds of argument permitted in this jurisdiction. See State v. Lapham, 135 Vt. 393, 405-08, 377 A.2d 249, 256-58 (1977) ; State v. Parker, 104 Vt. 494, 502-03, 162 A. 696, 700 (1932). If we were not reversing this cause oh other grounds, the claimed errors in argument might well be a basis for reversal. We do not, however, reach this issue.
Reversed and remanded.