Berard v. Moeykens, 157-73
| Docket Nº | No. 157-73 |
| Citation | 326 A.2d 166, 132 Vt. 597 |
| Case Date | October 01, 1974 |
| Court | United States State Supreme Court of Vermont |
Page 166
v.
Julius MOEYKENS, Warden.
Page 167
[132 Vt. 598] Robert Edward West, Defender Gen., Rutland, and Gregory A. McKenzie, Deputy Defender Gen., Montpelier, for plaintiff.
Kimberly B. Cheney, Atty. Gen., and Greg E. Studen, Asst. Atty. Gen., for defendant.
[132 Vt. 597] Before BARNEY, C. J., and SMITH, KEYSER, DALEY and LARROW, JJ.
[132 Vt. 598] LARROW, Justice.
Tried under an indictment returned by the Windsor County grand jury, petitioner here was convicted of first degree murder and, on February 12, 1973, sentenced to life imprisonment. This conviction, under mandatory appeal, was affirmed by this court on February 5, 1974. State v. Berard, 132 Vt. 138, 315 A.2d 501 (1974). On March 15, 1973, while his appeal was pending, he filed with the Windsor County Court this petition, titled as one for writ of habeas corpus under 12 V.S.A. § 3951 et seq. In general, he alleged prejudice to his constitutional rights arising from the presence of unauthorized persons before the grand jury, and, by motion, sought production of the entire grand jury minutes. His petition specifically alleges that 'the contentions set forth in this petition are not being brought in the pending appeal.' The trial court, by appropriate orders accompanied by carefully drawn conclusions of law, denied the motion and the petition. We affirm.
If we were to treat the petition here consistently with its title, as one for habeas corpus, it could be dismissed out of hand under 13 V.S.A. § 7136, which requires initial resort to a petition for postconviction review before the county (now Superior) court with a different presiding judge if that was the sentencing court, as a condition precedent to habeas corpus, which lies in the county of imprisonment. In the interests of justice, however, we treat the case as one for post-conviction review, since it meets all the requisites for such a petition, the courts being the same and the presiding [132 Vt. 599] judge being different from the sentencing judge. Magoon v. Smith, 130 Vt. 603, 298 A.2d 820 (1972).
The main thrust of petitioner's arguments seems to be that (a) the presence of four prosecutors before the grand jury is prejudicial as a matter of law, or (b) if not, there could well be prejudice in fact, which (c) petitioner cannot establish without being furnished all of the grand jury minutes.
The four prosecutors admittedly present before the grand jury were the state's attorney, deputy state's attorney, and two assistant...
To continue reading
Request your trial
-
In re Carter, No. 2001-502 | 2001-526
...post-conviction review is not a substitute for direct appeal. In re Nash, 149 Vt. 63, 64, 539 A.2d 989, 990 (1987); Berard v. Moeykens, 132 Vt. 597, 600, 326 A.2d 166, 168 (1974). The prohibition on deliberate bypass arises from this principle. See In re Stewart, 140 Vt. 351, 361, 438 A.2d ......
-
In re Carter, No. 01-502
...post-conviction review is not a substitute for direct appeal. In re Nash, 149 Vt. 63, 64, 539 A.2d 989, 990 (1987); Berard v. Moeykens, 132 Vt. 597, 600, 326 A.2d 166, 168 (1974). The prohibition on deliberate bypass arises from this principle. See In re Stewart, 140 Vt. 351, 361, 438 A.2d ......
-
In re Carter, 2004 VT 21 (Vt. 2/27/2004), Nos. 2001-502 & 2001-526, September Term, 2002
...post-conviction review is not a substitute for direct appeal. In re Nash, 149 Vt. 63, 64, 539 A.2d 989, 990 (1987); Berard v. Moeykens, 132 Vt. 597, 600, 326 A.2d 166, 168 (1974). The prohibition on deliberate bypass arises from this principle. See In re Stewart, 140 Vt. 351, 361, 438 A.2d ......
-
State v. Gretzler, 3750
...Commonwealth v. Favulli, 352 Mass. 95, 224 N.E.2d 422 (1967); Franklin v. State, 89 Nev. 382, 513 P.2d 1252 (1973); Berard v. Moeykens, 132 Vt. 597, 326 A.2d 166 We find no error. c. Was the grand jury tainted by pretrial publicity? Gretzler also contends that the grand jury members were pr......
-
In re Carter, No. 2001-502 | 2001-526
...post-conviction review is not a substitute for direct appeal. In re Nash, 149 Vt. 63, 64, 539 A.2d 989, 990 (1987); Berard v. Moeykens, 132 Vt. 597, 600, 326 A.2d 166, 168 (1974). The prohibition on deliberate bypass arises from this principle. See In re Stewart, 140 Vt. 351, 361, 438 A.2d ......
-
In re Carter, No. 01-502
...post-conviction review is not a substitute for direct appeal. In re Nash, 149 Vt. 63, 64, 539 A.2d 989, 990 (1987); Berard v. Moeykens, 132 Vt. 597, 600, 326 A.2d 166, 168 (1974). The prohibition on deliberate bypass arises from this principle. See In re Stewart, 140 Vt. 351, 361, 438 A.2d ......
-
In re Carter, 2004 VT 21 (Vt. 2/27/2004), Nos. 2001-502 & 2001-526, September Term, 2002
...post-conviction review is not a substitute for direct appeal. In re Nash, 149 Vt. 63, 64, 539 A.2d 989, 990 (1987); Berard v. Moeykens, 132 Vt. 597, 600, 326 A.2d 166, 168 (1974). The prohibition on deliberate bypass arises from this principle. See In re Stewart, 140 Vt. 351, 361, 438 A.2d ......
-
State v. Gretzler, 3750
...Commonwealth v. Favulli, 352 Mass. 95, 224 N.E.2d 422 (1967); Franklin v. State, 89 Nev. 382, 513 P.2d 1252 (1973); Berard v. Moeykens, 132 Vt. 597, 326 A.2d 166 We find no error. c. Was the grand jury tainted by pretrial publicity? Gretzler also contends that the grand jury members were pr......