Murray, In re, 80-72

• Decision Date: 05 December 1972
• Docket Number: No. 80-72,80-72
• Parties: In re Robert E. MURRAY.
• Court: Vermont Supreme Court

Page 835

298 A.2d 835

131 Vt. 4

In re Robert E. MURRAY.

No. 80-72.

Supreme Court of Vermont.

Dec. 5, 1972.

John J. Boylan, Jr., Burlington, for plaintiff.

Patrick J. Leahy, State's Atty., for defendant.

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

SMITH, Justice.

This is an appeal by the defendant from a denial of the Chittenden County Court of defendant's petition for post-conviction relief.

The defendant, Robert E. Murray, was indicted for murder in the first degree by a grand jury in Chittenden County on March 8, 1949. On November 23, 1949, the defendant entered a plea of guilty to murder in the second degree, and on the same day the Chittenden County Court sentenced him to life imprisonment at the State's Prison in Windsor. Some twenty-two years later, the defendant brought a petition for review pursuant to 13 V.S.A. § 7131.

The petition came on for hearing before the Chittenden County Court on March 10, 1972 and March 27, 1972. Findings of Fact were made and an order was entered in which the defendant's petition was denied.

In our consideration of the briefed claims of error of the defendant we are mindful that a plea of guilty is an admission of guilt according to the law at the time it was accepted by the court. Except in rare circumstances, the validity of the conviction on such a plea is to be judged by the constitutional standards applicable at that time. State v. Bartlett, 128 Vt. 618, 625, 270 A.2d 168. In re Mahoney, 128 Vt. 462, 266 A.2d 444.

The findings of fact made by the lower court, no exception to which has been indictment. On August 8, 1949, the defendant factual situation significant to this decision. The defendant was arrested on August 2, 1949, and given a copy of the indictment. On Ausgust 8, 1949, the defendant requested that Consuelo N. Bailey, Attorney at Law, of Burlington, be appointed as his attorney, and on August 11, 1949, the Court made such assignment.

On August 10, 1949, the then Attorney General of the State of Vermont and the States Attorney for Chittenden County petitioned Superior Judge Raymond Miles that they believed a plea of insanity would be made by the defendant, and on the same day, Judge Miles ordered the defendant to be sent to the State Hospital at Waterbury for observation to learn the truth or falsity of such a purported plea. Upon the determination by Dr. Chittick, then Superintendent of the State Hospital, that the defendant was not insane, the defendant was returned to the Chittenden County Jail on November 21, 1949.

On November 23, 1949, the indictment was exhibited in open court. On November 23, 1949, the defendant was arraigned in the Chittenden County Court on the indictment, charging him with murder in the first degree. By that time the legal counsel appointed to defend him, in addition to Mrs. Bailey, included A. Pearley Feen, Esq., and Hilton A. Wick, Esq., all experienced and eminent counsel. All were present at the arraignment. It was at this time that the defendant entered a plea to murder in the second degree and was sentenced to life imprisonment by the court.

Defendant complains that he was not represented by an attorney at all stages of the proceedings. But the record before us, and the findings, make clear that the defendant was advised at all material times not only by the attorney of his coice, but with the added assistance of two other well qualified attorneys, as well. The testimony of such counsel, at the post-conviction hearing below, was that they consulted with the defendant, with members of his family, as well as with each other on many occasions before the defendant entered his plea to murder second degree. The finding below was that the defendant was thoroughly and competently advised by counsel from August 8, 1949 up to his plea and sentence on November 23, 1949.

The defendant has cited to us the case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 as authority for his claim that he did not receive the constitutional rights laid down in this case. But such constitutional standards were not in effect in 1949, and the case cited by the defendant was handed down nearly twenty years later and is not applicable in this instance. State v. Bartlett, supra.

The defendant also asserts that he was prejudiced by the fact that he was not arraigned forthwith, at the time of his arrest, and that he was sent to the Vermont State Hospital without a hearing. The law, in 1949, did not provide for a hearing before an accused could be sent to the Vermont State Hospital. The law at that time, VS 1947, Sec. 2460, provided that once the presiding judge was satisfied that a plea of insanity might be made by a defendant, the accused could be detained at the state hospital for observation. The defendant has not shown that he was prejudiced in any way by the claimed irregularities. The right to not plead to an information or indictment until twenty-four hours after being furnished a copy of the same is a waivable right. In re Robinson, 125 Vt. 343, 346, 215 A.2d 55. A plea of guilty bars review of prior irregularities if such defects are subject to waiver. In re Dobson, 125 Vt. 165, 166, 212 A.2d 620. No error is found by vitue of these claims of the defendant.

The defendant's next claim is double-barrelled in effect. He asserts that he never entered a plea of any kind to the indictment that charged him with first degree murder, and that he was never charged or arraigned on the crime of second degree murder, which charge was not then and there pending against the defendant.

DB[094][6,7] VS 1947, Sec. 2471, the law in effect at the time the defendant was charged with murder in the first degree (now 13 V.S.A. Sec. 2310), provided that a defedant indicted for murder may be convicted of murder in either degree or of manslaughter. Is is the evidence in the case, and not the indictment, that determines the degree of conviction. State v. Averill, 85 Vt. 115, 131, 81 A. 461. If the defendant had...