Rebideau, In re, 189-81

• Citation: 141 Vt. 254,448 A.2d 144
• Decision Date: 20 May 1982
• Docket Number: No. 189-81,189-81
• Parties: In re Raymond L. REBIDEAU.
• Court: United States State Supreme Court of Vermont

Page 144

448 A.2d 144

141 Vt. 254

In re Raymond L. REBIDEAU.

No. 189-81.

Supreme Court of Vermont.

May 20, 1982.

Dorsch & Hertz, Brattleboro, for petitioner.

John J. Easton, Jr., Atty. Gen., and Susan R. Harritt and James R. Crucitti, Asst. Attys. Gen., Montpelier, for defendant.

Before BARNEY, C. J., BILLINGS and HILL, JJ., SHANGRAW, C. J., and DALEY, J. (Ret.), Specially Assigned.

BARNEY, Chief Justice.

This is an appeal from a denial of post-conviction relief in Addison Superior Court in 1977. The defendant seeks to overturn a nine year old conviction of first degree murder for his involvement in the shooting death of Raymond Lestage in 1972. We are called upon to determine whether the defendant's right to due process was violated by what he alleges to be the prosecutor's knowing use of perjured testimony against him and his suppression of information about one of the murder weapons, either of which the defendant claims would have aided his cause.

The facts of this case have already been detailed in other opinions. State v. Berard, 134 Vt. 220, 356 A.2d 514 (1976); State v. Woodmansee, 133 Vt. 449, 344 A.2d 26 (1975); State v. Rebideau, 132 Vt. 445, 321 A.2d 58 (1974); State v. Berard, 132 Vt. 138, 315 A.2d 501 (1974). Briefly, the defendant and one Frank Berard were found to have shot Raymond Lestage in a Royalton cemetery, Berard with a revolver and the defendant with a shotgun, in the presence of a woman named Linda Badore.

Following the defendant's conviction in March, 1973, he moved for a new trial on several grounds, none of which is relevant to this appeal. That motion was denied. The defendant was sentenced to life imprisonment in April, 1973, and three months later filed a petition for a new trial alleging newly discovered evidence. This petition was withdrawn when it appeared that the entire case was under mandatory consideration by this Court pursuant to statutory appeal. That first appeal was heard and decided adversely to the defendant in June, 1974, but the issue of new evidence was never addressed in our decision since it had not been passed on below.

The defendant next filed a petition for post-conviction relief or, in the alternative, a motion for new trial, in July, 1975. This petition was amended in January, 1976, and, after a series of motions, heard in July of 1977. In his petition the defendant claimed that the State's knowing use of perjured testimony and its suppression of ballistics information concerning one of the murder weapons had violated his right to due process of law. This petition and the alternative motion were denied in September, 1977. The trial court determined that the defendant had not shown either knowing use of perjured testimony or knowing suppression of exculpatory information, and added that even if he had, in neither case would there be cause for reversal of the conviction. The bases for that court's conclusions will be developed as we pursue review.

The defendant appealed the lower court's order denying relief, but that appeal, being out of time, was denied.

A second post-conviction relief petition was then brought maintaining the defendant's right to have the substantive issues he had raised in his first petition reviewed, notwithstanding the ineffective assistance of counsel which had resulted in the untimely notice of appeal. He requested permission to file a second appeal. The lower court considered the substantive issues underlying the petition and denied the request, but on appeal we reversed in In re Rebideau, 139 Vt. 530, 431 A.2d 484 (1981), noting that denial of review under the circumstances was of prejudicial dimension. The filing of the present, third, appeal from the decision on the first petition timely followed.

As we have recently stated, post-conviction relief is not a vehicle for reexamining a defendant's guilt or innocence, but is rather designed to correct fundamental trial errors without jeopardizing the State's interest in finality. In re Stewart, 140 Vt. 351, 360, 438 A.2d 1106, 1110 (1981). The defendant bringing such a petition is required to establish the infirmity of his conviction--in this case that his due process rights were violated--by a preponderance of the evidence. Id.

In support of his allegation that the prosecution knowingly used perjured testimony of two witnesses, the defendant looks to a post-trial comment by the prosecutor to a reporter to the effect that he had a "gut feeling" two witnesses were not telling the whole truth. He also asks us to examine testimony from his co-defendant's trial, as well as our own opinion in that case on appeal. At issue is the testimony of Joseph Bartlett, the defendant's landlord, and Robert Blanchard, Bartlett's brother-in-law.

Bartlett testified at the defendant's trial that approximately six weeks after Raymond Lestage's murder he discovered a .22 caliber revolver at a vacant lot which he owned adjoining his apartment building, which he showed to his brother-in-law Blanchard. Blanchard then testified that he was the owner of the revolver, that it had been stolen from him sometime in the summer of 1972, and that he took it from Bartlett and kept it for a few months before turning it over to a police officer named Lahue. During the defendant's trial Bartlett was not cross-examined at all, and Blanchard only mildly. Blanchard was asked whether the story he was giving in court was the same story he had given to Lahue at the time he turned over the revolver. He replied, "I believe so. I can't remember." and was not cross-examined further. The police officer, Lahue, was not called as a witness.

By contrast, at the earlier Berard trial, testimony established that the revolver had been loaned by Blanchard to Bartlett two or three days before the homicide, and had been returned by Bartlett to Blanchard two or three days after the homicide with the comment that it had been used in the murder of Raymond Lestage. State v. Berard, supra, 132 Vt. at 143-44, 315 A.2d at 506. Both Bartlett and Blanchard were called to testify, as was officer Lahue. That more attention was focused on the matter in the Berard trial is not surprising in light of the fact that it was Berard, not this defendant, who was accused of shooting Lestage with the revolver in question.

The State responds that even if the record were so enlarged it would not aid the defendant's case. This is demonstrably so.

Even if the testimony of officer Lahue were included in this record on appeal, at best it demonstrates an inconsistency in the...