State v. Alexander
| Decision Date | 07 December 1971 |
| Docket Number | No. 16-71,16-71 |
| Citation | 130 Vt. 54,286 A.2d 262 |
| Parties | STATE of Vermont v. Richard E. ALEXANDER and Lorraine M. Alexander. |
| Court | Vermont Supreme Court |
James M. Jeffords, Atty. Gen., and H. Russell Morss, Asst. Atty. Gen., for plaintiff.
Edward A. John, Ralph Chapman, Brattleboro, for defendants.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
This is an appeal before final judgment upon questions certified to this Court by the Vermont District Court, Unit #6, Windham Circuit.
Upon application of the state's attorney of Windham County, the district court held a criminal inquest as authorized by 13 V.S.A. §§ 5131-5137 the subject matter of which arose out of a fire at the so-called Jelly Mill property in West Dummerston. As a result of the testimony at the inquest, criminal proceedings were brought against the respondents by numerous informations on a multiplicity of alleged offenses-offering for sale, selling and installing fire detection equipment not approved by the state fire marshall, also doing such acts without a license, conspiring to do such acts and interference with telephone wires.
The inquest was held on January 28, 1970, and Mr. Alexander, at his own request, was the first witness to testify. He was not under subpoena to appear. The sheriff of Windham County was present throughout the inquest sitting at the counsel table with the state's attorney and participated in the proceedings by asking questions of several witnesses.
After the attorney general brought the criminal charges against the respondents they were met by a motion to dismiss the complaints and also by a motion to suppress the evidence developed by the inquest. The ground of the latter motion was that the mandate of secrecy imposed by the statutes governing inquests was violated. They also requested that the court order the state to refrain from using any of the information derived from the inquest.
After hearing the motions the court denied the motion to dismiss and made the following entry on the motion to suppress:
A. The Motion to Suppress is granted on the grounds that:
1. An inquest is a discovery proceeding designed to assist the State in investigating possible criminal activities.
2. By virtue of 13 V.S.A. § 5134, an inquest is a secret proceeding and only the officers therein named shall have access to the testimony therein given.
3. By necessary implication, said section also prohibits others, except those specifically authorized by statute, from being present at an inquest.
4. William Graham, Sheriff of Windham County, was present throughout the entire Inquest; he interrogated several witnesses, including the Respondent; and he was given a copy of the transcript of the testimony taken at said Inquest.
5. Although Respondent, and others who testified, did not object to the Sheriff's presence, such objection would have been immaterial because his presence was not specifically permitted by statute.
6. The statute specifically prohibits the minutes of the testimony being given to anyone other than those officers named in the statute without approval of the Supreme or County Court, and such other officers do not include sheriffs.
7. No approval of the Supreme or County Court was obtained.
8. Furthermore, with respect to the testimony of the Respondent, David Gibson, Esquire, then State's Attorney, testified that he told Respondent he would not deliver the transcript of Respondent's testimony to the Attorney General, and this Court elects to honor such commitment.
Therefore, it is ordered hereby that the transcript of the testimony taken during such Inquest is suppressed forthwith and all testimony elicited during such Inquest shall not be available hereafter for the purpose of prosecuting the Respondent. The exhibits introduced are not suppressed by this order.
The information relating to the Jelly Mill property came on for trial by jury on December 15, 1970. The information contained six counts-three against both respondents and three others against only Mr. Alexander. After the first witness for the state had answered several preliminary questions, the defense counsel objected to his further testifying on the ground that it would amount to a violation of the court's order relative to the suppression of testimony given at the inquest.
The court sustained the objection of defense counsel. In ruling on the motion it said, 'We won't prevent him from testifying in any material way, provided he doesn't testify to the same thing he did during the inquest.' The court also ruled that the other witnesses subpoenaed were prevented from testifying in the trial to the same matters they did during the inquest.
The prosecuting officer stated that without this testimony the state was not in a position to produce sufficient evidence to sustain a conviction. Thereupon, counsel for the respondents moved that the court dismiss the charges presently pending in the court against them. The court ruled on the motion as follows:
Respondents' Motion to Dismiss all counts in this cause is granted.
The basis for the Court's ruling is:
1. The state has conceded it has insufficient evidence to sustain its burden, other than that which was elicited during the inquest; and that the witnesses at such inquest would testify substantially the same during trial of this cause.
2. For the reasons stated in this Court's Entry on file, it was ordered that all testimony elicited at said inquest be suppressed and that same not be used by the State for purposes of prosecuting these Respondents.
3. Because said testimony is not admissible on trial, pursuant to the Court's prior ruling, and because the State has no additional evidence, Respondent's Motion to Dismiss is granted.
The state was allowed the right to appeal before final judgment and was ordered to prepare and submit questions for certification.
The case comes to us on the following five questions certified for review. The first three relate (1) to the presence of the county sheriff at the criminal inquest, (2) his participation in the proceedings and (3) his being provided with a transcript of the inquest proceedings. The certified questions as to each of these factual situations is whether they constitute a legal basis for an interlocutory order:
a. Suppressing the transcript of the testimony taken at such inquest and ordering that all the testimony elicited during the inquest shall not be available thereafter for the purpose of prosecuting the respondent b. Barring the prosecution from eliciting the same, or substantially the same testimony, from the inquest witnesses called to testify upon trials of the respondent on information resulting from the inquest and based principally upon the testimony of the inquest witness?
The fourth question is whether the fact that the state's attorney conducting the inquest represented to respondent Alexander before he testified that he would not deliver a transcript of respondent's testimony to the attorney general but, following the resignation of that state's attorney, a full transcript was obtained by the attorney general for the purpose of determining what future action should be taken, is a legal basis for an interlocutory order as stated in paragraphs (a) and (b), supra.
The fifth certified question is whether the interlocutory order entered by the court will 'bar inquest witnesses from testifying as to same subject matter or giving substantially the same testimony at subsequent trials of informations principally based upon and resulting from their testimony given at such inquest?'
We are confined strictly to the questions certified and other questions not within the purview of those certified are not for consideration. In re Crescent Beach Assn., 126 Vt. 448, 453, 236 A.2d 497.
The first three certified questions raise identical issues and are grouped together for consideration. There is no dispute as to the factual situation stated in each question.
The respondents contend that a criminal inquest is a secret proceeding and that under the facts shown the proceeding here was in violation both of the rule of secrecy made evident by the statutes and of the respondents' substantial rights. The state does not agree and claims that the respondents have not established that any of their constitutional rights have been trespassed upon.
Notwithstanding argument to the contrary, there is no...
To continue reading
Request your trial
-
Herald v. Vt. State Police & Office of the Attorney Gen.
...hearing and no stenographer. Our case law has interpreted the statutes to make the evidentiary hearing secret, see Alexander, 130 Vt. at 60, 286 A.2d at 265, but we have never held secret anything beyond the evidentiary hearing and its content. It is an unjustified expansion of the statute ......
-
Wheel v. Robinson
...conducted by the state's attorney to aid him in deciding whether prosecution is warranted in relation to a crime." State v. Alexander, 130 Vt. 54, 61, 286 A.2d 262, 266 (1971). The proceeding is conducted before a judge, who is authorized to compel the attendance of witnesses. Vt.Stat.Ann. ......
-
State v. Chenette, 86-135
...365-66 (1961). Also, an inquest "relates to criminal matters to determine the existence of probable cause...." State v. Alexander, 130 Vt. 54, 60, 286 A.2d 262, 265 (1971). It is an "investigatory proceeding conducted by the state's attorney to aid him in deciding whether prosecution is war......
-
State v. Carpenter
...adoption of Rule 5(b) and therefore can hardly be said to interpret it. So did the grant of permission to appeal in State v. Alexander, 130 Vt. 54, 286 A.2d 262 (1971). Brown v. Tatro, 134 Vt. 248, 356 A.2d 512 (1976), could be read as some support for the State's position. But we did not t......
-
Ruminations
...152 Vt. 548, 568 (1989). [51] In re D.L., 164 Vt. 223, 230-232 (1995). [52] 13 V.S.A. § 5162; 18 V.S.A. § 505. [53] State v. Alexander, 130 Vt. 54, 60-61 (1971). [54] 13 V.S.A. § 5131. [55] 13 V.S.A. § 5123. [56] State v. Tonzola, 159 Vt. 491, 500 (1993). [57] In re Certain Inquest Matters,......