*1 (1972) (sale liquors intoxicating privilege subject is a to the police power problems of the state due to the social inherent in alcohol). consumption
The facts of satisfy the instant case show that licensee failed to duty. affirmative The Board concluded that “licensee should have been able to better night question, control” events on the stating accomplished that this could have been with more man- power, vigilance, proper increased and insistence on decorum patrons. from particular, pointed the Board to the fact that deposited licensee one combatant original to the altercation premises, outside mood, supervi- still a combative without sion, despite his obvious state of intoxication and his threats of dire harm participant to the other fight, who remained in- premises. side police arrived, When the found the com- batant involved person altercation with another outside of premises, persons several other becoming embroiled fray. properly The Board Regulation construed General No. 41 in finding permitted prohibited licensee had or suffered premises, conduct on its supports the evidence the Board’s conclusion that licensee failed in duty keep its affirmative public adjacent areas premises public from becoming a nui- sance.
Affirmed.
State of Vermont v. Gordon Hunt
[555 369] No. 85-235 Peck, J., Barney, (Ret.), Costello, (Ret.), Present: C.J. D.J. Valente Jenkins, Supr. JJ., Specially Assigned
Opinion Filed October *2 Attorney, Woodruff, Washington County Deputy State’s Jane (On Grad, Brief), Montpelier, Barre, and Maxine Law Clerk Plaintiff-Appellee. for Morris, General, Jr., A. Nel- Walter M. and William Defender
son, Appellate Dеfender, Montpelier, Defendant-Appellant. Peck, charged J. Hunt was with first de- Defendant Gordon gree City April subsequently murder Barre on 1982. He was jury Superior charge following convicted of the trial in Lamoille appeals Court. He We affirm. conviction this Court. murder, Sophos day In the Peter late afternoon of the apartment was found shot in Barre. The to death his first-floor police- approximately p.m., were various called at 4:30 men, attorney’s investigators personnel office from the state’s identify began interviewing people them at the scene order *3 happened. and determine what defendant, old, years
The in a who was 19 lived with his father apartment, directly second-floor above the victim. From an initial apparent police conversation with that he had been the became during period police Sophos home the in which the believed had killed, hearing seeing anything been but he denied or unusual. p.m. police began Around 5:30 investigate officer the sec- hallway padlock ond-floor He cas- evidence. noticed a broken ing on Believing might the attic door. the lock have been day murder, broken that officer connection with the inspect climbed the third-floor was stairs to area. attic dimly flashlight. lit so he went back downstairs to obtain a
During this initial search of the attic defendant followed the police “private prop- officer and informed him that the attic was erty,” go up and he “shouldn’t there.” When the officer returned flashlight, police help with the and a second officer to search the attic, however, them; attempted accompany again defendant firmly the officers told him to remain downstairs. p.m.
At abоut 6:00 the officers a rifle behind a cabi- discovered space person. They in a large enough net to hide a did not touch rifle, stayed but one of them with it while the other went then ob- lab team. The latter crime downstairs to summon the attic. permission to search the tained the landlord’s written put his Meanwhile, apartment. He on returned to his defendant five feet jump to a roof jacket opened order to and the window this, however, police accomplish below flee. he could Before door, jacket, seeing him in his on his officerknocked responded open, going. Defendant window asked where he was store, if he would going the officer asked that he was agreed to do so. “stick around” for a little while. He later, defendant’s door minutes three officers knocked on Ten could going if he mind down to the station so he and asked would questions.” agreed go. At this be asked He some “routine police in- point, suspects. Although the defendant was one of two people statements from a number of had tended to obtain per- spoken apartment building, the first to at the defendant was curiousity go son of “his unnatural asked to station because presence building . at the at the crime scene . . his [and] time of the murder.” station, his
At the defendant was taken into an office and read rights, waiving rights, his he Miranda which he waived. Before arrest, He was asked if he under and was told he was not. questioned knowledge victim then a short time about his murder, sample; give fingerprint and the he did so. and asked to One of the three officers then asked he could have been how murder, watching apartment sleeping his at the time of the television, gunshot. requested to and not have heard a word, and, be left alone with this officer before the officer said a killing. he confessed to the confession, gave taped
After the statements to initial police: lengthy explanation what had a more detailed and occurred, voluntarily accompanied that he the officers to the had leave, understanding station with the that he was free to freely making and that he After the initial the statements. confession, father, requested he to see and was told he could *4 do so at a later time. interview,
During taped provided the officers defendant evidence, including spent cartridge with other case which he had thrown out at the station. He also a breath test which took blood, he submitted to a showed that he had no alcohol po- polygraph Finally, test. he dictated a sеcond statement officers, by signed lice which was him and notarized. Attorney April 20, 1982, County Washington State’s
On charged Washington Superior filed an information in Court which degree Sophos. defendant with the first murder Peter At of defendant, Washington request of from changed venue was County County, Superior Chittenden Chittenden and the rejected plea agreement Court reached between the defendant and the State which have in a minimum sentence would resulted years moved, Subsequently, de- of ten to serve. venue was over objection, Superior of fendant’s to the Lamoille order Court, degree guilty where found first murder he was of after by jury. imposed subsequently a trial court trial sentence years thirty appeal to life. This followed. appeal: following
Defendant makes the claims error on jurisdiction, I. The Vermont Court acted withоut process rights, violation of defendant’s due when changed; ordered the venue case County judges II. improp- The Chittenden assistant acted erly they rejected plea agreement; when County III. The judges Lamoille assistant should have been disqualified case; participation from in the IV. rights Defendant’s Fourth Fourteenth Amendment Constitution, under States United and Article Eleven Constitution, under the Vermont were violated probable warrantless search and seizure done without cause exigent circumstances; V. improperly Defendant’s evi- confession was admitted into dence;
VI. The improperly impeached defendant evi- exculpatory dence that failed to make claims at confession; the time of his
VII. impermissible The trial allowed evi- character dence.
I.
complicated
A
string
events
led tо defendant’s first claim
plea
When
original
agreement
rejected by
error.
the Chit-
*5
Court,
power
challenged the
of the as
Superior
tenden
accept
reject pleas,
or
judges
participate
deciding
in
sistant
Hunt,
State Vt.
interlocutory appeal.
in an
See
denied,
of the assistant
cert.
without to hear the case because authority change the Lamoille court. lacked to order a of venue to question requires whether is a novel one. It us to determine supervisory authority encompasses di of the is, recting prevent justice. There change a of venue to a failure course, statutory authority judicial ac clear branch to 21; complish change a of venue. V.R.Cr.P. 13 V.S.A. 4631. Ordi § narily, power superior the exercise of that rests with the court as Truman, expressly provided by law. Nevertheless, responsibility it is of the system provide impartial a fair and tribunal for the con duct of a nor criminal trial. Neither the State defendant has — once, motion,
right preferred place on defendant’s of trial — particular is V.R.Cr.P. abandoned to insist on another situs. 21, Reporter’s Moreover, Notes. neither defense nor State has to hold on to an unfair or biased tribunal order to take results, advantage right to of it as to choice of and neither has the comprised insist that the trial be held before a court so by possible composition trial will be burdened claims of defective performance ordinary beyond challenges which above and might proceedings. place arise such To leave that situation give one side or the other an automatic and undeserved veto over the or the outcome to the detriment of either the defendant people of the State of Vermont. unusual, extraordinary but was
Such a situation is both circumstances, power true in this case. the inherent Under these provide judicial and constitutional command to environment allegations impropriety free from taint basic a re- is so that, sponsibility proceed- judiciary have the rather than *6 ings go already compromised, the forward under circumstances was, be, authority properly ex- of the Court had to and bring alignment consistent ercised to the case back into a trial fair, responsibilities judiciary provide with the unbi- of the to II, judicious ased and Ch. tribunal. See Vermont Constitution § 30; 2(b). unusual, authority 4 judicial V.S.A. The exercise of was § unusual, indeed, by hopefully unique, сalled forth circumstances. prosecution go setting in a of defendant needed to forward guilt by where his or court free innocence could be determined among attorneys from all past disputes contact with the and judges. by County This was accomplished removal to Lamoille by assignment Judge Bryan, completely the who un- was place tainted the in unusual series of events which had taken prior might this case Although hindsight to that time. in have preferable been in for this Court to with this situation have dealt way, draconian, reasonable, another this Court’s order system. high purposes judicial consistent with the Cf. Fields, 268, 276, (1984) (su- 1379, State v. 67 Haw. 686 P.2d 1386 pervisory power authority prevent includes to and correct errors law); where remedy expressly provided by no other is State v. Gunzelman, 295, 299, (1973) (superin- 85 N.M. 512 P.2d tending cope control allows new formulate means to exigencies exercise); Erwin, that call App. for its Brewer v. 70 Or. 709, 711, (1984) (an court, appellate 690 P.2d as inci- appellate dent jurisdiction, to its powers has such inherent as are necessary effectually jurisdiction). to enable it to exercise its argues
Defendant also order Court venue, changing defendant, rendered without notice to violated process constitutional due general of law. It is a rule require error will not prejudicial reversal unless it is Hohman, defendant, depriving him of State v. a fair trial. 502, 506-07, recently This has A.2d that, possible held even where have oc constitutional violations “ cured, duty reviewing ‘it court to consider trial ” . . . harmless that are ignore errors a whole and to record as (1984) (quoting 427, 434, Nash, State v. (1983) (emphasis Hasting, 508-09 461 U.S. United States v. demonstrate has failed to original). In this defendant therefore, venue; hold we change prejudice resulting this from app here, error of harmless the doctrine that if there was error Baldwin, 52(a); See V.R.Cr.P. lies.1 438 A.2d 1135, 1142 change in a venue he harmed that was County (1) re- ways, including: change to Lamoille number of (2) Judge pool; jury urbanized and less educated sulted a less since he Morse, judge, preferable presiding the Chittenden (3) involved; Judge legal the facts and issues was familiar with admissible previously evidence to be Morse had also found crucial that, again, objection if was raised only by margin a narrow so (4) favor; Chit- because the might he rule defendant’s plea approval presiding judge had earlier indicated tenden years, predisposed he was agreement’s minimum sentence of ten years approve a of ten give defendant a minimum sentence are These cоncerns plea agreement new if one were reached. best, they demon- agree that highly speculative at and we cannot case. prejudice strate undue *7 change claim that the significant It is that defendant does not Rather, deprived in venue him a fair trial. defendant of strategy as change to his defense that the venue was detrimental not, alone, prejudice sufficient indicated This will establish above. “ reversal, ‘right to require failed to show that his as defendant ” State v. complete, adequate jeopardized.’ fair and trial [was] (1979) (citation Ahearn, 696, 253, 266, omitt 403 A.2d 704 137 Vt. ed).2 lacked that if the Court Defendant also contends authority change then defendant’s convic venue this Superior lacked the Lamoille Court tion must be reversed because improperly placed if jurisdiction. disagree. Even venuе were We 1 apply when the error is harmless error does not We note that the doctrine of 224, Motors, Inc., 615, 620, Soucy Soucy jurisdictional. 471 A.2d 227 v. 143 (1983). 2 locality may recognize tried in the have an interest to be We that a defendant occurred; however, change by moving of venue from where offense County County, right. Washington See defendant waived this to Chittenden (1983). 268, 438, 441, Aldoupolis, Commonwealth 457 N.E.2d 390 Mass. 270 thereafter, county choosing. right, to be tried in the of his He has no
[491] court, superior way in the general “in error no affects the jurisdiction Page subject-matter.” of the court over the v. Town Newbury, 336, 339, 218, (1943); 113 Vt. 34 A.2d 220 see also In Jordan, 348, 351, (1971) 724, re (departure 129 Vt. 278 A.2d provisions from the process of the venue statute is a defect jurisdiction did not affect subject of the court over the mat- ter). prejudice resulting
Defendant has failed to demonstrate from venue; therefore, change error, even if there required. harmless and reversal on this issue is not Hamlin, 97, 106, 45, 146 Vt. 499 A.2d
II.
appeal,
his second claim
questions
on
propriety of the
County
Chittenden
judges’ rejection
assistant
plea agreement.
Insofar as this Court considered this same
previously
Hunt,
34,
109,
issue
145 Vt.
cert.
denied,
(1984),
It is a well established rule
that a decision a case a court of last resort is the law of points presented case on the throughout subsequent all proceedings therein, question necessarily and no then in- volved and decided will be reconsidered the Court in the same case on a state of facts in legal not different effect. Barclay Co., 227, v. Wetmore & 230, Morse Granite 94 Vt. A. 1, (1920); Co., see Belock 252, v. State Mutual Fire Ins. 108 Vt. 255-56, 185 A. 101-02 This doctrine is similar to that “ judicata stare decisis and res in that it is based on the ‘sound public policy permit parties which doеs not go again ... ” again to the upon question.’ the same Per- Hydro-Electric kins v. Vermont Corp., A. (1934) (quoting Guilmont’s Adm’r v. Central Vermont Ry., (1909)). A.
We note challenge that this regard includes claims with *8 propriety rejection plea of the agreement of the during not made “ interlocutory appeal. defendant’s This Court has a ‘well-estab- ” policy lished avoiding piecemeal Pyramid Co., appeals.’ In re 294, 305, 915, (1982) (citation omitted). 449 already fully
Since
rejection
plea
contested the
interlocutory action,
in the
challenges
we will not now consider
that should have
during
been raised
the earlier determination of
Barclay,
2;
this
issue. See
Vt. at
110 A. at
see also Smith
States,
(D.
Supp. 1359,
1970),
v. United
F.
aff’d,
1361 Vt.
(2d
1971).
F.2d 1406
contrary
Cir.
To hold otherwise would be
purpose
a central
granting interlocutory appeals,
which is to
Pyramid,
advance the ultimate termination of a case. See
141 Vt.
at
III.
County
next
that the Lamoille
assistant
judges
disqualified
should have
participation
been
from
in the
they
case
repudiate
because
alleged
failed to
ethical misconduct
undertaken on their
alleges
president
behalf. Defendant
that the
of the AJA
improperly by
acted
communicating with the Attor
ney
regard
General with
association’s interest
Hunt,
The Code of 3(C)(1), Judicial provides Canon that a “judge disqualify should in proceeding himself in which impartiality might reasonably questioned be . . . .” Such dis- qualification required “whenever impartiality a doubt of would exist in reasonаble, the mind of a disinterested Rich- observer.” Richard, ard professional AJA is an political informal organization,
originally formed purposes. for educational judges All assistant automatically state membership, and attendance qualify meetings appears optional. to be illogical It be would to hold that the judges Lamoille assistant disqualified should have been simply president because association, of their without their knowledge approval, acted in allegedly unethical manner respect to the case. appeal
On context, only this this Court will review the ac- tions of the trial court for an abuse Id. at of discretion. A.2d at 1190. In defendant has not established *9 presiding judge in this judges or assistant abused their discretion Therefore, matter. we find no error.
IV.
police
Defendant next
that the
search of the attic
weapon
rights
and seizure of the murder
violated his
under the
Vermont and United States Constitutions. Defendant contends
(1)
(2)
attic,
legitimate expectation
privacy
he had a
exigent
that no
justify
circumstances existed
warrantless
(3)
search,
lawful,
that the warrantless seizure of the rifle was not
(.4)
that the rifle and defendant’s confessions should have
suppressed
products
been
illegal
as the direct
of the
search.
support
contentions,
In
of these
defendant cites our recent de-
Wood,
cision in
In this the confession was not a fruit search of the attic. presented On the evidence there is no indicаtion that the discovery search or gun produced of the defendant’s confession. Although police fingerprints defendant was asked for his order to they expected determine if matched those to find on gun, his given only initial confession was after a officer questioned veracity explanation of defendant’s that he was in apartment any at the time of the murder but did not hear thing. The officer apartment asked him how he could “be [his] 1:00, awake, at watching TV and gun not háve heard a shot?” say We cannot illegal that but for the search and seizure of the gun, defendant would not have confessed to the murder. See Segura States, (1984) (evidence v. United 468 U.S. will not be excluded illegal as “fruit” of the unlawful search and seizure unless the search is “at least the ‘but for’ cause of the discovery evidence”).3 Consequently, of the as thе confession is search, not a fruit of the properly admitted trial. gun search, Since the was a direct fruit of the its admis sion into may improper evidence have been should the search be I, construing Chapter rely Article Eleven of the Vermont Constitution we on precedents merely guidance, Fourth Amendment but we do not consider Michigan Long, ourselves bound those decisions. See 463 U.S. Badger, illegal.
found
(1982). However,
references to
defendant’s confession included
why
descriptions
gun
explanations and detailed
gun
evidence such
gun;
where he hid the
itself was cumulative
error,
if
harmless. See
that even
its admission was
error was
103(a) (erroneous evidentiary ruling
affect
V.R.E.
which does not
52(a)
error);
party is
V.R.Cr.P.
substantial
of a
harmless
error, defect,
(“Any
irregularity
not affect
or variance which does
Nash,
disregarded.”);
144 Vt. at
substаntial
shall be
(even
possible
V. argues Defendant next that his confessions should have been (1) suppressed illegal because: were the fruit of an seizure of (2) defendant; accompany police his consent to officers to the (3) police involuntary; station was in vio- his confessions were (4) counsel; right lation of his to silence and to the trial legally proof used a errroneous standard determine to voluntary that his derogation confession was and not in of his rights to privilege against counsel and self-incrimination.
A. First, when, illegally defendant claims he was seized lacking probable him, police cause to arrest him to ac asked company station, police him informing them to the without also brief, duty that he had go. no Defendant concedes in his how ever, that under federal constitution it is clear that the failure to inform a defendant that he or she could withhold consent accompany is not sufficient to establish the existence of Watson, illegal 411, coercion. United States v. 424- See 423 U.S. (1976); (1973). Bustamonte, 218, 25 Schneckloth 412 U.S. 227 Defendant contends that the rule should be different under I, Chapter Article Eleven of the Vermont Constitution. He that Schneckloth and Watson are bad decisions which should not incorporated be into Vermont’s constitutional law of search and seizure, that, may suspect before a be deemed to have waived rights against person, by his or her a “seizure” of his or her con-
[495] station, showing some accompany police to the senting decline he she could knew that or he she was told or otherwise Johnson, 349, 68 N.J. State v. required. should be consent 151, Derrico, (1975); 181 Conn. 353-54, 66, State v. 68 346 A.2d 159-60, 434 A.2d under fully in his brief how
Defendant has addressed him given might differ from those Vermont Constitution Constitution; however, to do so he failed United States under the Although defendant cited at trial. in his motions and memoranda pretrial and introductory paragraph of his Eleven in the Article memoranda, the Ver- failed to discuss trial court the memoranda Understandably, any respect. the trial mont Constitution suppress defend- ruling did not address court’s on the motion ant’s state constitutional issue. duty the advocate to repeatedly held that “it is the
We have issues, appropriate, at the trial raise state constitutional where Jewett, 221, 229, State v. 146 Vt. level . . . .” Gabaree, n.2, (1985); 542 A.2d see error, extraordinary plain n.2 circumstances or Absent given be reversed when it has not been trial court should not opportunity fully rule on the matter before to consider and to 12, 15, Cameron, Cameron v. generally it. See (1979) place in error for (“[W]e a trial court will not given the matters not it and which it has not been raised before Denton, correct.”); opportunity Dindo v. *11 (“A (1972) brought question cannot be to this 552-53 had no upon appear that the trial court which it is made to (citation omitted). opportunity pass judgment.”)
fair Maguire, Therefore, we follow our decision (1985), in the state constitu- which by trial the tional issue not discussed at was also mentioned but that, Maguire showing ex- held absent a of defendant. In we circumstances, ap- traordinary address an issue on we would not Having no peal, properly Id. found argued not raised and below. review, ap- extraordinary warranting decline to circumstances we appeal. ply analysis time on Vermont constitutional for the first B. that, totality the cir given the of
Defendant next contends cumstances, accompany police to the station his consent to the involuntary unlawfully
was consequently he was seized and that under the Fourth Amendment and his should confessions have suppressed product illegality. been as a of this Under the Fourth person Amendment a a has constitutional to be free from States, Katz v. United unreasonable searches and seizures. person U.S. been within has ‘seized’ the “[A] if, meaning only of the Fourth Amendment of all of view the incident, surrounding person circumstances the a reasonable was not free to leave.” United States would he have believed that Mendenhall, (1980) (footnote omitted). 446 U.S. In Mendenhall the examples United States Court set out that, might circumstances a indicate seizure even where the person attempt police: not go did to decline with the “the officers, threatening presence display weapon of several the aof by officer, physical person citizen, some touching the or the of language indicating compliance use or tone of voice that (citation Id. request might with'the compelled.” officer’s be omit- ted).
In police two nearby, officers with third manner threatening neither compelling, nor if asked defendant he would going mind police questions. station to answer some De- why they go them, fendant asked wanted him and one of you officers ques- answered “we’d like to ask some routine responded tions.” Defendant then he accompa- that did not mind nying them. Defendant went to police the station cruiser but being handcuffed, without po- there is no evidence that any way; station, lice touched him in once inside the his Miranda rights was read and he if asked he was under arrest. police informed him that he not under arrest. Defendant waived Miranda and sometime thereafter confessed to the murder.
On the facts of this
we
case
conclude that
no seizure
defend-
ant
voluntarily
occurred when
accompanied
he
station
questioning.
simply
for
seized
fact that
join
officers asked him to
them
questioning.
Immigration &
Delgato,
Naturalization
Service
U.S.
(1984); Mendenhall,
addition,
U.S. at 555.
“the fact
expressly
was not
[defendant]
told
[officers]
[he]
cooperate
was free
decline
inquiry”
to.
with their
turn
does not
*12
approach
into a seizure since “the voluntariness of
re-
[his]
sponses
depend upon
does not
having been so informed.”
[his]
express
Mendеnhall,
find no evidence of
Defendant next that questioning rights decline father constituted an assertion of his counsel, and as a result of the and that confessions obtained suppressed. The trial questioning continued should have been court found that on a of occasions after his initial confes number requested sion defendant to see his father. He was told he cоuld time, subsequently arranged him see at a later which was in fact while he was the station detention cell. knowingly
The trial court also found that the find, as de- intelligently rights. Miranda We cannot waived his do, request to see his fa- fendant would have us that defendant’s ther silent or to an attor- assertion of his to remain ney. request speak per se
Defendant’s
with his father was not a
request
request
nothing
to remain silent.
is
inherent in the
There
parent by
nearly
year-old
requires
for a
defendant that
us
expression
right
to find that it constitutes an
of his
to remain
C.,
Fare v.
silent. See
Michael
442 U.S.
Such a
request may
evaluating
taken
whether de-
be
into account when
voluntary
knowing
fendant had in fact
waiver of his
made a
compelled
Fifth Amendment
to be free from
self-incrimina-
evidence, however,
tion. In the
in the circum-
absence of further
here,
aрpear
stances as
if
intended to invoke
even defendant
Dunaway
opinion
that
the United States
Court
York,
Dunaway
(1979),
controlling.
disagree.
New
The rule enunciated in Miranda
was based on Supreme] United States percep- Court’s [the lawyer tion that occupies position a critical legal our system unique ability because of his protect to the Fifth rights Amendment of a undergoing client custodial interro- gation. special Because of ability lawyer help of the to preserve the client his Fifth rights Amendment once the cli- ent becomes adversary process, enmeshed the Court right found that present “the to have counsel at the interro- gation indispensable is protection of the Fifth Amendment privilege system” under established Court. C.,
Fare v. Michael
Miranda,
U.S. at
(quoting
D. Defendant next that the trial court erred em ploying inappropriate proof pretrial sup standard of at the pression hearing. The “preponderance trial used a *14 evidence” admissibility standard to determine the of defendant’s confession. that We note raises for defendant this issue the first appeal. on time in proceeding Nowhere the did below defendant challenge employed the standard to determine whether there was right a valid waiver of his repeatedly to counsel. This has that, alleged held error not before raised the trial “[w]here court, ordinarily Court will address it unless the circum plain stances indicate Paquette, error occurred.” State v. has 1, 4, 358, (1985) (citation Vt. omitted); 146 A.2d 497 361 see State Emilo, 405, 410, 341, (1985); v. 145 Vt. 491 A.2d 344 State v. Mecier, 173, 177, 737, (1984); 488 A.2d 740 V.R.Cr.P. 52(b). Assuming employed that the standard trial court is all, at error we do not grave find it “so that serious it strikes very at the heart rights,” constitutional [defendant’s] Morrill, 142, (1969); v. A.2d 253 145 it does not plain constitute error. consequently The claim was waived and we will not address it.
VI. We process consider next claim his defendant’s that due were violated the cross-examination Dr. of Woodruff’s testimony concerning a “trance state” he in defendant said was time shooting. He further that the State im properly impeached the defense that witness evidence de give exсulpatory explanation during fendant failed to an his con addition, fession. In urges he us to in closing find that his prosecutor statement jury argued improperly to the that the only evidence of the trance was defendant’s statements to the
500
prepa-
shooting
months after the
psychiatrist, made three
for trial.
ration
Ohio,
v.
610
Doyle
426 U.S.
principally upon
relies
(1986), in
Wainwright Greenfield,
(1976), Doyle the United States In support argument. his “it given, warnings been that, Miranda have once Court held process deprivation of due fundamentally and a be unfair would impeach to an person’s to be used silence to allow the arrested Doyle, 426 U.S. at subsequently explanation offered at trial.” (footnote omitted). Wainwright, the United States explain of the unfairness that source Court went on to “[t]he warnings Miranda implicit assurance containеd (foot- Wainwright, U.S. at carry penalty.” will no silence omitted). note eventually to invoke
In this
defendant did not
to
silent,
and confess
speak
he
to
remain
but
chose
Thus,
penalize
prosecutor did not
killing.
he
those
rights;
never asserted
exercising his Fifth Amendment
speak
speak,
failure
rights. “Once a defendant decides
[his]
explained away
responce Mi
exculpation
be
as
cannot
1981);
(Me.
Kane,
warnings.”
randa
(D.C.
1979),
States,
App.
404 A.2d
see Hill v. United
denied,
held
This Court has
cert.
A it both If he defendant cannot have demerits, says judged is on its merits or or omits to be part helps only the that not on some artificial standard that where the him later This was not case can be referred to. prior rights. of government upon ... exercise commented
[501] government jury asked the to measure what the defend- ant voluntarily said when he had no he because had waived them. 1967). States, 121, (1st
Vitali v. United 383 F.2d 123 Cir. prosecutor’s We find that proper comments were on attacks credibility of psychiatrist defendant’s assertion to the he that was in impermis a trance at the time of killing, and were not post-аrrest Squires, sible comments on State silence. v. . 430, 431, 1154, (1986) Vt. 519 A.2d
VII. argument Defendant’s final is that the trial allowed permitted inadmissible character evidence when it the State to insanity contest the prior issue of with evidence of bad acts. The prosecution, rebuttal, on introduced evidence defendant committed various unrelated crimes in. engaged other bad disprove acts in order to insanity by defendant’s claim of estab lishing that he personality had an “antisocial disorder.”
It is well established Vermont that matters of trial con- “[i]n evidentiary duct and rulings the trial court has wide discretion.” Richards, State 16, 19, v. 1187, (1983); 470 A.2d see Settle, 58, 62, State v. 141 Vt. 442 A.2d In the absence an abuse of discretion we will not overturn the trial Brown, coúrt’s decision. Smith,
In State
(1978),
this Court
scope
held that “the
sanity
of relevant evidence as to
insanity
has to be allowed to
appro-
be whatever
breadth
priate
fully expose
jury
issue to the
their
fair determi-
Thus, plea
nation.”
insanity opens
inquiry
may
a broad
previous
include
episodes
behavior,
of violent and antisocial
so
long as it has
sanity.
some connection to the
issue
defendant’s
524-25,
Id. at
In defendant suffering claimed he was from a border- personality line prevented which being him from able to form the necessary charged. By so, intent crime for the doing opened the inquiry door to a broad into his mental condition. Ac- cordingly, prosecution countered defendant’s claim with ex- pert testimony that he suffering from a mental condition known personality as “antisocial disorder.” In explaining how he *16 expert mentioned de- conclusion, prosecution’s this the
reached prior relationships bM interpersonal fendant’s difficultiеs does not say that this evidence 703. cannot acts. See V.R.E. We Smith, at sanity, see upon the issue of defendant’s bear 524-25, find the trial accordingly, do not admitting testimony. this court abused its discretion Affirmed. dissenting.
Valente, J., Under the Supr. Specially Assigned, ju- Supreme Court acted without circumstances of this Chittenden change of venue from risdiction when ordered a Superior Court lacked County. As result the Lamoille Lamoille reason, I State Hunt. For this power to hear the matter respectfully dissent. error, that the Ver considering first claim of defendant’s majority jurisdiction, Supreme without
mont Court acted supervisory opinion question being frames the as “whether encompasses change directing a authority Supreme The prevent justice.” the issue. This of venue to a failure Court, Supreme the aus question presented under is whether the motion, may, powers, own as pices superintending of its on its pending it without jurisdiction a matter not before sume over litigants. opportunity to be heard to the providing notice and an power to addressing Supreme Court’s Before the issue matter, whether change it must first be determined venue Supreme power to even consider the Vermont Court had the Hunt, Superior S- Court Docket No. of State Chittenden case 1-83CnCr. superin- agree majority
I
with the
Court has
agree
tending powers.
I
is the exercise
these
What cannot
powers
presented
this case.
fact
under the circumstances
superintending
control over inferior
that the
Court has
original jurisdiction
courts does not
itself mean that
have
supervisory
pending The doors of
over matters
those courts.
only
are met. The law
jurisdiction open
when certain сonditions
single
case
subject
annotations
cases on the
fail
reveal
powers on its
higher
supervisory
its
where a
tribunal exercised
Superintending
Annotation,
Control Over
own motion. See
Infer-
(1938); Annotation,
Tribunals,
Superintend-
ior
A.L.R. 1351
(N.S.)
(1909);
Tribunals,
ing
20 L.R.A.
Control Over Inferior
*17
Annotation, Superintending
Supervisory
Control and
Jurisdic-
Superior
Tribunal,
tion
Over the
or Subordinate
of
Inferior
instance,
afford the
process
change
defendant due
when
ordered
may
venue
have been a violation of
rights,
his constitutional
but
it was harmless error. Since the
in changing
error was not
venue, but rather
in exercising jurisdiction
in-
the first
stance,
Soucy,
the doctrine
apply.
of harmless error does not
Therefore,
For the reasons stated I reverse would and remand the case for trial before Superior the Chittenden Court.
State of Vermont v. A. Schmitt Michael
[554 666] No. 86-326 Allen, C.J., Hill, Gibson, JJ., Barney, (Ret.), Present: Peek and C.J. Specially Assigned
Opinion Filed October