Ladabouche v. Walton, No. 88-090

• Docket Nº: No. 88-090
• Citation: 565 A.2d 1324, 152 Vt. 224
• Case Date: July 28, 1989
• Court: United States State Supreme Court of Vermont

Page 1324

565 A.2d 1324 152 Vt. 224 George LADABOUCHE
v.
James WALTON, Jr., Commissioner of the Vermont Department of
Corrections. No. 88-090. Supreme Court of Vermont. July 28, 1989.

Zuccaro, Willis & Bent, St. Johnsbury, for plaintiff-appellant.

William Sorrell, Chittenden County State's Atty., John Churchill, Deputy State's Atty., Burlington, and [152 Vt. 225] Robert W. Katims, Law Clerk, Dept. of State's Attys., Montpelier, for defendant-appellee.

Before [152 Vt. 224] ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

[152 Vt. 225] GIBSON, Justice.

Petitioner appeals from the superior court's denial of his petitions for post-conviction relief and for a writ of habeas corpus. We affirm.

Petitioner was convicted of first-degree murder on November 4, 1983, following a jury trial. He appealed to this Court, and we affirmed. State v. Ladabouche, 146 Vt. 279, 502 A.2d 852 (1985) ("Ladabouche I "). A significant portion of the State's case consisted of the testimony of John Savo, Sr., an alleged accomplice in the crime, who had received immunity from the State on an accessory charge in exchange for his testimony, which immunity agreement was disclosed to the jury. Following Savo's direct testimony, petitioner's counsel cross-examined him for two days, noting what he regarded as numerous discrepancies in the testimony. At its completion, the trial judge expressed concern about the truthfulness of Savo's testimony and stated on the record, but with the jury absent, that he was ordering a transcript of the testimony, together with Savo's inquest and deposition testimony, forwarded to the Vermont Attorney General's Office for "appropriate investigation and action." Petitioner moved for a judgment of acquittal at the close of the State's case and also moved under V.R.E. 601(b)(2) to strike the testimony of Savo as a person incapable of understanding the duty of a witness to tell the truth. Both defense motions were denied.

Following the guilty verdict, petitioner renewed his motions to strike the Savo testimony and for acquittal, and moved in the alternative for a new trial. Upon denial of these motions, petitioner undertook an appeal to this Court (Ladabouche I ), raising the issues of whether "the trial court abused its discretion in not granting a new trial where the chief prosecution witness

Page 1325

allegedly committed perjury, and in refusing to hold an evidentiary hearing on the issue," 146 Vt. at 280, 502 A.2d at 854, and whether "the trial court applied an incorrect standard in denying his motion for a new trial." Id. at 283, 502 A.2d at 855.

Though petitioner appeared to have waived the claim of prosecutorial misconduct in his new trial motion, we nevertheless considered that argument, observing:

[152 Vt. 226] A conviction obtained through the use of false evidence, known to be such by the State, and either solicited by the State or allowed to go uncorrected, violates the Fourteenth Amendment of the United States Constitution. If such an error occurred, it was plain error.

Id. at 281, 502 A.2d at 854 (citation omitted). It should be noted, however, that a ground which petitioner did raise in his motion for a new trial, the denial of his motion to strike under V.R.E. 601(b)(2), was not raised on appeal. We affirmed petitioner's conviction, and the heart of our rationale in Ladabouche I is pertinent to the present petition for post-conviction relief:

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