State v. Angelucci

• Decision Date: 22 May 1979
• Docket Number: No. 7-78,7-78
• Citation: 405 A.2d 33,137 Vt. 272
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Frederick J. ANGELUCCI.

Page 33

405 A.2d 33

137 Vt. 272

STATE of Vermont v. Frederick J. ANGELUCCI.

No. 7-78.

Supreme Court of Vermont.

May 22, 1979.

Motion for Reargument Denied June 19, 1979.

Gregory W. McNaughton, Washington County State's Atty., Montpelier, for plaintiff.

James L. Morse, Defender Gen., Charles S. Martin and William A. Nelson, App. Defenders, David W. Curtis, Acting App. Defender, Montpelier, and on the brief Andrew B. Crane, Washington County Public Defender, Barre, John Franco and Jack Sahl, Law Clerks, Montpelier, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

BARNEY, Chief Justice.

The defendant was charged and convicted of burglary in the nighttime and grand larceny after trial by jury. He was also charged under the habitual offender statute, 13 V.S.A. § 11. This issue was presented to the jury and resulted in conviction after completion of the original felony trial. As a consequence of the granting of a motion for a change of venue, this Washington County proceeding was ultimately tried in Windsor Superior Court.

The criminal charges arose from a break-in at the office building of State Highway District No. 6 on Route 302 between Barre and Montpelier. By happenstance, this defendant was already under surveillance. As a result the defendant's car was observed turning off Route 302 in the vicinity of the office building at about 11:30 p. m. on June 9, 1977. Law officers located the empty car and watched it. After about half an hour someone came out of the bushes, got into the car and drove away. A check of the unlit side of the office building revealed a window had been broken and several pieces of office equipment were outside on the ground, covered by a piece of plastic to protect them from intermittent rain. Officers took concealed position near the equipment. While they were there, other officers observed the defendant making many trips back and forth on the highway next to the office building. Finally the vehicle turned in, put its lights out and pulled up to the pile of equipment. The defendant got out, covered the registration plate with a towel and loaded the equipment into the trunk. He was then arrested.

The appeal raises a number of issues.

The defendant raised the issue of speedy trial and moved for dismissal of the charges against him. He now asserts the denial of that motion was error. His original arraignment took place in district court on June 10, 1977. On August 8, 1977, the cause was transferred to superior court where defendant was rearraigned. At all relevant times the defendant was confined, being unable to furnish bail. On September 8, 1977, the omnibus hearing was had with various motions, including the motion for change of venue and the motion to dismiss for want of speedy trial, considered.

In its findings on the speedy trial issue the trial court reported, and it is undisputed, that the State pressed for an earlier hearing at the arraignment when the omnibus hearing was set for September 8. The defendant neither opposed nor joined the State's request. There were apparently some calendaring obstacles in the superior court that interfered with an earlier hearing.

The State quite correctly points out that the 129 day period from arraignment before the district court to trial before superior court involved 45 days of pretrial proceedings. This, the State says, makes the true measure of delay only 84 days. The defendant argues that a close reading of Administrative Order No. 5, 12 V.S.A. App. VIII, required the State to seek a postponement under section two of that order to avoid dismissal.

It is clear from the facts that this case does not reach the level of State v. Franklin, 136 Vt. 568, 396 A.2d 138 (1978), where this Court found the right to a speedy trial violated as a matter of law after an eighteen month delay in going to trial not brought about by the defendant. The governing doctrine for the circumstances in this case are found in State v. Chamberlin, 131 Vt. 549, 551, 310 A.2d 30 (1973). Unlike that case, this defendant was in confinement recognized in § 2 of Administrative Order No. 5 by a shortening of the time schedule for criminal trials. However, as Chamberlin states, the implementation of this order is a discretionary matter for the trial court, and is not invocable as a matter of right by a defendant. Here there was a hearing held and findings made, including one determining that no prejudice had been established. The trial court's discretion was invoked, and properly exercised. No error can be based on this ruling.

The defendant objected to the evidence in the case indicating that he was under surveillance prior to any criminal activity with which he was charged in this case. His contention was that such evidence was prejudicial to the point of outweighing its relevance. The objection was made at the opening of the trial after empanelling of the jury, and the trial court denied the request for exclusion.

The issue involves a balancing of concerns between relevance and prejudice. Prejudicial effect may overwhelm relevance and render otherwise proper evidence inadmissible. State v. Beyor, 129 Vt. 472, 473, 282 A.2d 819 (1971). However, it must be understood that criminal activity cannot go unprosecuted because elements relevant to its establishment are simultaneously prejudicial from some other point of view unrelated to the crime. Thus there comes a point of relevance that cannot be overcome because of some prejudicial effect. The question is always one of balancing interests. See State v. Davis, 132 Vt. 290, 293, 318 A.2d 664 (1974).

Since the evidence of criminal activity derived from the eyewitness accounts of those involved in the surveillance, its relevance was of the highest order. The testimony confined itself to the fact of observation only during a period of time relevant to the crime charged. Any purposes that may have existed for initiating the surveillance were left unstated and entirely without inferential suggestion. The ruling below must be affirmed.

At the close of the State's case the defendant moved for a judgment of acquittal as to both the charge of burglary in the nighttime and grand larceny. The trial court denied the motions. The defendant introduced no evidence, and the case went to the jury.

The crime of burglary involves a breaking. Unless the evidence is sufficient to support a jury finding that the defendant broke into the building, either personally, or in chargeable combination with another, he cannot be convicted of burglary. State v. Hart, 119 Vt. 54, 58, 117 A.2d 387 (1955). An essential element of the crime cannot be supplied by suspicion, however strong. State v. Angelucci, 135 Vt. 43, 46, 373 A.2d 834 (1977).

Although the evidence in the case indicates there was, at some time between 5:30 p. m. and 2:30 a. m., a breaking into the building on the highway department premises, only conjecture ties it to the defendant. The presence of the defendant in the area earlier than the time of the surveillance of the property piled outside raises strong suspicions, but, by themselves, such suspicions are not enough to convict. State v. Benoit, 136 Vt. 431, 435-36, 392 A.2d 406 (1978). Without evidence sufficiently establishing that the defendant broke and entered the building a charge of burglary cannot be made out.

The deficiency is not corrected by use of the doctrine of unexplained possession of stolen property, referred to in the trial court's charge. See State v. Beyor, supra, 129 Vt. at 475, 282 A.2d 819. The impact of that doctrine is to point out that unexplained possession of recently stolen goods may justify inferences supporting the existence of other elements of larceny. But the inferential effect does not reach elements essential to establish the special characteristics of a crime like burglary, such as the breaking. The motion for a judgment of acquittal as it applied to the burglary charge should have been granted.

This does not necessarily dispose of the separate count for grand larceny. Not only was it charged in an independent count, but 13 V.S.A. § 2507 specifically authorizes that a person tried for burglary or robbery may be convicted of larceny if that offense is proved to the satisfaction of the jury. For this reason a separate examination is required for the motion for acquittal of the charge of grand larceny.

A review of the evidence reveals that all of the elements of grand larceny were sufficiently established to support both the denial of a motion for judgment of acquittal and the jury's ultimate verdict of guilty on the charge.

While under the eyes of the testifying officers the defendant removed from the premises of the owner property established as belonging to the state highway district office, took it into possession by placing it in his car, and was arrested as he prepared to leave the premises. The defendant attempts to divert attention from the effectiveness of these facts in satisfying the measure of proof required to support the conviction. But the argument that some other putative thief may have moved the property from one part of the owner's premises to another accomplishes nothing. Since theft itself yields no title, incomplete theft without removal from the owner's premises and possession in no way negates the highway department's continuing property in the goods. Thus, when the defendant took the items, he was taking them from the possession of the department and the theft was sufficiently evidenced. It is of no consequence to this charge that he may have done more, since this crime was established. The motion for acquittal was properly denied.

Whether he might also have been charged with receiving stolen property, as the defendant himself suggests, is of no moment. Where facts establish overlapping criminal offenses, the prosecutor may choose between them in the exercise of a proper discretion. State v. Tedesco, 175 Conn. 279, 397 A.2d...