State v. Arbeitman, No. 115-72

Docket NºNo. 115-72
Citation313 A.2d 17, 131 Vt. 596
Case DateDecember 04, 1973
CourtUnited States State Supreme Court of Vermont

Page 17

313 A.2d 17
131 Vt. 596
STATE of Vermont
v.
David ARBEITMAN.
No. 115-72.
Supreme Court of Vermont.
Dec. 4, 1973.

[131 Vt. 598]

Page 18

Robert W. Gagnon, State's Atty., and Jean B. Baldwin, Deputy State's Atty., for the State.

James C. Gallagher, Downs, Rachlin & Martin, St. Johnsbury, for defendant.

[131 Vt. 596] Before BARNEY, SMITH, KEYSER and DALEY, JJ., and HILL, Superior Judge.

[131 Vt. 598] DALEY, Justice.

This is an appeal from a conviction, following a jury trial in the District Court of Vermont, Unit No. 5, Washington Circuit, for obstructing pedestrian traffic with intent to cause public inconvenience or annoyance. Such intentional obstruction is one form of disorderly conduct prohibited by 13 V.S.A. § 1026. The relevant portions of this section provide:

A person who, with intent to cause public inconvenience, or annoyance . . .:

(5) Obstructs . . . pedestrian traffic, shall be imprisoned for not more than 60 days or fined not more than $500.00 or both.

We affirm the judgment of the lower court.

On May 11, 1972, about 35 people gathered in front of the Federal Building in Montpelier to protest the United States' involvement in the Vietnam War. After allowing them to sit in front of the Post Office doors for approximately three hours, the State's Attorney for Washington County informed them of the law prohibiting obstruction of pedestrian traffic and warned that nondispersal after a ten-minute period would result in arrest.

Appellant was present and heard the State's Attorney's warning. Although most of the demonstrators did disperse [131 Vt. 599] within the ten-minute grace period, appellant then selected for himself from out of the now more open area a seat directly in

Page 19

front of the outer door. He faced the street and placed his back squarely against the door.

Normally a person entering the Federal Building does so by pulling this door outward, toward himself. During the approximately five-minute span prior to appellant's arrest, two or three people attempted and gained entrance by pulling with sufficient force to slide him far enough out of the way to be able to squeeze in sideways. These people were adult males, and they were aided by a guard inside the building who was pushing outward on the door.

The appellant claims that three events occurring during the trial, taken cumulatively, result in prejudicial error, requiring reversal of his conviction. The first was a comment made by the State's Attorney during cross-examination by the appellant's counsel. This comment related to a warning that the State's Attorney made that a severe sentence would be recommended if the appellant insisted on his right to a jury trial.

It is readily apparent from the record that this comment was made in open court only as an anticipated response to a specific question of the appellant's counsel. The appellant cannot now ask us to entertain a claim of prejudicial taint in his trial that was brought about in his own behalf. Moreover, the State's Attorney withdrew from the prosecution of the appellant when aware that he would be a witness in this case, and the prosecuting attorney in this case made no sentence recommendation following the conviction of the appellant. At any rate, sentencing is solely the function of the trial judge. See 13 V.S.A. § 7031.

The appellant, as his second and third events, presents us with the number of challenges for cause during voir dire, which taken together with the fact that the jury returned its verdict after deliberating for ten minutes, establishes the prejudice of the jury against him. The law of this jurisdiction allows for an unlimited number of challenges for cause.

[131 Vt. 600] During the course of the voir dire examination, certain prospective jurors indicated hostility toward anti-war demonstrations. All of these jurors were subject to challenge for cause and were excused. In addition to the appellant's unrestricted challenges for cause, all of which were consequentially granted, he exercised the six peremptory challenges permitted under our law. He has not demonstrated that his right to remove biased and prejudiced prospective jurors was in any way impaired or that the jury that determined his guilt was other than fair and impartial.

Furthermore, the law does not prescribe a mandatory minimum length of time that a jury must deliberate before returning a verdict. State v. Morrill, 127 Vt. 506, 509, 253 A.2d 142 (1969); State v. Lumbra, 122 Vt. 467, 469, 177 A.2d 356 (1962). Strong evidence of guilt, a lack of complex legal issues, and a proper charge by the court are factors that would naturally speed a jury's return with its verdict. The record shows that all three factors are present in this case.

Therefore, taken either separately or cumulatively, the three events of which the appellant complains do not display prejudicial error. The appellant takes nothing by these claims of error.

The appellant's next attacks on his conviction are based upon the statute itself, 13...

To continue reading

Request your trial
18 practice notes
  • State v. Read, No. 95-023
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 22, 1996
    ...(rejecting vagueness challenge to "violent, tumultuous or threatening behavior" provision of 13 V.S.A. § 1026(1)); State v. Arbeitman, 131 Vt. 596, 601, 313 A.2d 17, 20 (1973) (rejecting vagueness and overbreadth challenges to "[o]bstructs ... pedestrian traffic" provision of 13 V.S.A. § 10......
  • State v. Cantrell, No. 84-052
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 10, 1989
    ...error" since, in his opening statement, the defense counsel asserted that "the operation was a complete success." State v. Arbeitman, 131 Vt. 596, 599, 313 A.2d 17, 19 Vermont Rule of Evidence 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the c......
  • Sunday v. Stratton Corp., No. 241-77
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 6, 1978
    ...charge as a whole, the claimed error is not sustained. Paton v. Sawyer, 134 Vt. 598, 600, 370 A.2d 215, 216 (1976); State v. Arbeitman, 131 Vt. 596, 602, 313 A.2d 17, 20 The second claimed error in the charge is not clearly delineated in its scope, either in the briefs as filed by defendant......
  • State v. Pecora, No. 06-303.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 24, 2007
    ...have been "`held criminally responsible for conduct which [they] could not reasonably understand to be proscribed.'" State v. Arbeitman, 131 Vt. 596, 601, 313 A.2d 17, 20 (1973) (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 Reversed and remanded. ---------......
  • Request a trial to view additional results
18 cases
  • State v. Read, No. 95-023
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 22, 1996
    ...(rejecting vagueness challenge to "violent, tumultuous or threatening behavior" provision of 13 V.S.A. § 1026(1)); State v. Arbeitman, 131 Vt. 596, 601, 313 A.2d 17, 20 (1973) (rejecting vagueness and overbreadth challenges to "[o]bstructs ... pedestrian traffic" provision of 13 V.S.A. § 10......
  • State v. Cantrell, No. 84-052
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 10, 1989
    ...error" since, in his opening statement, the defense counsel asserted that "the operation was a complete success." State v. Arbeitman, 131 Vt. 596, 599, 313 A.2d 17, 19 Vermont Rule of Evidence 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the c......
  • Sunday v. Stratton Corp., No. 241-77
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 6, 1978
    ...charge as a whole, the claimed error is not sustained. Paton v. Sawyer, 134 Vt. 598, 600, 370 A.2d 215, 216 (1976); State v. Arbeitman, 131 Vt. 596, 602, 313 A.2d 17, 20 The second claimed error in the charge is not clearly delineated in its scope, either in the briefs as filed by defendant......
  • State v. Pecora, No. 06-303.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 24, 2007
    ...have been "`held criminally responsible for conduct which [they] could not reasonably understand to be proscribed.'" State v. Arbeitman, 131 Vt. 596, 601, 313 A.2d 17, 20 (1973) (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 Reversed and remanded. ---------......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT