Dunkerley, In re, 56-77

• Decision Date: 07 June 1977
• Docket Number: No. 56-77,56-77
• Citation: 135 Vt. 260,376 A.2d 43
• Court: Vermont Supreme Court
• Parties: In re Scott David DUNKERLEY.

Page 43

376 A.2d 43

135 Vt. 260

In re Scott David DUNKERLEY.

No. 56-77.

Supreme Court of Vermont.

June 7, 1977.

James L. Morse, Defender Gen., and Charles S. Martin, App. Defender, Montpelier, for petitioner.

M. Jerome Diamond, Atty. Gen., Montpelier, Dale O. Gray, Caledonia County State's Atty., St. Johnsbury, and William T. Keefe, Asst. Atty. Gen., Montpelier, for respondent.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

BARNEY, Chief Judge.

This is a petition for habeas corpus based on the prohibition against double jeopardy. The issue came about as the result of emergency hospitalization of the defendant on the third day of his trial for the killing of his stepfather, under a prosecution for first-degree murder. The diagnosis relating to the emergency hospitalization was that of a collapsed lung with a prognosis of a seven to ten-day hospitalization period. The trial court had another doctor examine the defendant, and the diagnosis was confirmed by him, and by a third doctor who was to treat the defendant. The court then ordered a mistrial on its own motion. It is the defendant's position that that ruling raises the barrier of double jeopardy and prevents retrial.

The contested issue in the case related to the insanity or diminished capacity of the defendant so that he would be not guilty by reason of insanity or, at least, not guilty of first-degree murder. This was the only defense put forward; the facts of the shooting of the stepfather with a .22 caliber pistol were not disputed.

At the time of the medical emergency, the jury had been empanelled and the trial was under way. Opening statements describing the theories of the prosecution and defense had been made to the jury. The defendant's mother had testified about the shooting and the relationship between her son, the defendant, and her husband, his stepfather. She had also testified about the defendant's childhood and about his personal difficulties. She had testified on both direct and cross-examination. After the completion of this examination, the court had recessed for the day. It was the following morning that Dunkerley was taken to the hospital.

The decision to declare a mistrial was left to the trial court. The State refused to move for that disposition, and the defendant, through his attorney, opposed stopping the trial. Defendant's counsel proposed that the defendant waive his right to be present at the trial so that the proceedings could continue. It was also proposed that sequestration of the jury be waived and, if necessary, the trial be temporarily recessed. Counsel based the claim of right upon V.R.Cr.P. 43(b), which provides:

The further progress of the trial to and including the return of the verdict shall not be prevented whenever a defendant, initially present,

(1) in noncapital cases, voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his obligation to remain during the trial, or

(2) engages in conduct which is such as to justify his being excluded from the courtroom.

The trial court denied the motion on the basis that the defendant's absence from the courtroom was not "voluntary", as contemplated by the rule in question. In the trial of the habeas corpus petition, that court took the same view-that the absence of the defendant was not voluntary, and that retrial after the declaration of mistrial would not involve double jeopardy. The defendant appealed that decision here.

The defendant's concern for the continuation of the trial centers on the testimony of his mother. She was a witness to his psychological dependence upon her, and to the possibility of his losing touch with reality and believing that she wanted her husband dead. She testified to her husband's mistreatment of her and his dislike of the defendant. From a tactical point of view, it was the opinion of defendant's counsel that this testimonial appearance went well, and that there was risk that a second appearance, before a new jury, might not go as well, and, further, would cause great emotional distress to the defendant's mother, a key witness.

Under former Vermont practice, the declaration of a mistrial would not have automatically raised a bar of double jeopardy, since it irrevocably attached only upon rendition of a judgment of not guilty. State v. Velander, 123 Vt. 60, 61, 181 A.2d 60 (1962); State v. Frotten, 114 Vt. 410, 416-17, 46 A.2d 921 (1946). It was discretionary with the trial judge as to whether he would require the trial to go forward, allow retrial, or order a verdict directed in favor of the defendant. That practice did have the advantage of lessening the tactical maneuvering generated by automatic rules of jeopardy that apply in early trial stages. The trial judge had the authority to prevent any improper impositions or an infringement of a defendant's rights. State v. Deso, 110 Vt. 1, 10-11, 1 A.2d 710 (1938).

Since Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), Vermont law relating to former jeopardy has, through the operation of the Fourteenth Amendment, become the law of the Double Jeopardy Clause of the Fifth Amendment. Cases raising the issue must be reviewed under the standards for that clause as set out by the United States Supreme Court.

Jeopardy attaches, in contrast to previous Vermont practice, with empanelling and swearing in of the jury, or, in a trial by court, when the court begins to receive evidence. Illinois v. Somerville, 410 U.S. 458, 471, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973) (White, J., dissenting). This case had passed that point. It was interrupted short of verdict.

The law of United States v. Perez, 22 U.S. (9 Wheaton) 579, 580, 6 L.Ed. 165 (1824), is still cited as the governing law of mistrial, as recently as United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642, decided April 4, 1977. The guiding principle stated by Mr. Justice Story reads:

The prisoner has not been convicted or acquitted, and may again be put upon his defence. We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.

Thus, under the Double Jeopardy Clause also, it has been found necessary to make room for the operation of judicial judgment to prevent the application of the doctrine from being unfair or used to defeat the ends of justice. Although the approaches may differ, basic constitutional objectives have a way of ending up with comparable standards for substantively identical objectives.

The Perez case, quoted above, stated in 1824 that definition of all the circumstances governing the exercise of judicial discretion in granting a mistrial is impossible. The Supreme Court maintains that position until this very day. Various concerns have been mentioned, but none has been set out as a governing concern that would override the judge's duty to exercise his discretion.

One of the discretionary concerns talked about in recent cases relates...