Emrick v. Connarn

• Decision Date: 02 December 1969
• Docket Number: No. 88-69,88-69
• Citation: 260 A.2d 380,128 Vt. 202
• Parties: John EMRICK, Petitioner, v. John P. CONNARN, Judge of District Court of Vermont Unit #5, and District Court of Vermont, Unit #5, Petitionees.
• Court: Vermont Supreme Court

Page 380

260 A.2d 380

128 Vt. 202

John EMRICK, Petitioner, v. John P. CONNARN, Judge of District Court of Vermont Unit #5 and District Court of Vermont, Unit #5, Petitionees.

No. 88-69.

Supreme Court of Vermont.

Dec. 2, 1969.

Edwin W. Free, Jr., Barre, for petitioner.

Kimberly B. Cheney, State's Atty., for petitionees.

Before HOLDEN, C. J., SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SHANGRAW, Justice.

This is a petition for a writ of certiorari.

Petitioner was charged by information dated December 23, 1968, with the crime of breaking and entering in the daytime of Seivrighths Pharmacy in Montpelier, Vermont. A plea of not guilty was entered and counsel was appointed to represent the respondent.

On May 27, 1969, the respondent through his attorney made an oral motion to the Honorable John P. Connarn, Judge of the Washington District Court, Unit #5, for a certificate, under the provisions of the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal cases, requiring the attendance of two out-of-state witnesses at time of trial, one residing in the State of Maine, and one residing in the State of California. 13 V.S.A. § 6646.

Both the States of Maine and California have adopted this Uniform Act.

Respondent's motion was denied, although it was the impression of respondent's attorney that the motion, as to the witness in California, had been granted. To this end, it was suggested by the court that this attorney prepare the necessary papers to effect the presence of the California witness. Subsequently the respondent limited his request to the production of the one witness from California.

On May 28, 1969 Judge Connarn requested respondent's attorney to come to his office on May 29, 1969 to discuss with him and the State's Attorney, the procedure involved in bringing the California witness to Vermont.

On arriving in court on May 29, 1969 counsel for the respondent learned that the State was going to present testimony through a State Police Officer bearing upon the immateriality of the testimony of the California witness.

Counsel for the respondent objected to these proceedings, pointing out to the court that there had been given no notice of the hearing for this purpose to the respondent or his counsel, and respondent was not present and did not have an opportunity to be present. The court proceeded to hearing and took and considered the State's offered evidence on this issue. Counsel for the respondent took no part in the proceedings.

At the conclusion of this hearing held on May 29, 1969, respondent's motion for the production of the California witness was denied. As grounds for the denial of the motion, the court in part stated: 'The Court does not feel that sufficient evidence has been introduced, shown, or an offer made as to what exactly or even in substance the testimony of this witness in California would be.'

In support of the motion to produce the California witness, it was urged by the respondent in open court that, acting under an illegal search warrant, officers found a quantity of drugs in the trailer, presumably to be used by the State as evidence on the burglary charge. Respondent claimed that the testimony of this witness, who was present at the time of search, was material and would have a direct bearing on the alleged illegal seizure of the drugs, all of which was preparatory to a proposed motion to suppress this evidence.

In his brief, the respondent's main and only assault on the action of the court to the denial of his request to order the presence of the California witness during trial, relates to the taking of the testimony of the state police officer on May 29, 1969, without respondent having had an opportunity to be present at the time of the taking of this evidence by the court below.

The office of the writ of certiorari is to provide for a review of the judicial action of inferior court, special tribunals, public officers and bodies exercising judicial functions in those instances where no other means of review is provided. Rutland Hospital Inc. v. State Board of Health, 126 Vt. 41, 44, 220 A.2d 722.

It is well settled that the issuing of a writ of certiorari is largely a matter of discretion. The practice in this state is to hear the merits of the case upon the petition and subsequent pleadings, and practically decide it upon the granting or refusal of the writ. Such a writ issues only when there is no other adequate remedy at law, and brings up for review only substantial questions of law affecting the merits of the case involved in the proceedings below. In re Taconic Racing &...