State v. Barr

• Decision Date: 04 October 1966
• Docket Number: No. 349,349
• Citation: 126 Vt. 112,223 A.2d 462
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Robert BARR.

Page 462

223 A.2d 462

126 Vt. 112

STATE of Vermont v. Robert BARR.

No. 349.

Supreme Court of Vermont.

Oct. 4, 1966.

Patrick J. Leahy, State's Atty., Burlington, for plaintiff

R. Allan Paul, Burlington, for defendant.

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

SHANGRAW, Justice.

This prosecution was brought by the State's Attorney for Chittenden County on an information charging the respondent with the crimes of, (1) kidnapping, (2) burglary in nighttime, (3) conspiracy to rob, and (4) being an accessory to a kidnapping.

Respondent was tried during the March Term, 1965 and the jury found the respondent guilty of the first three counts-that is, kidnapping, burglary in nighttime, and conspiracy to rob. Respondent was adjudged guilty on the verdicts and sentences to the State Prison at Windsor, Vermont, were imposed. Respondent has since been confined in the State Prison.

The respondent has appealed. The assignments of error relate to the reception of certain evidence, to the denial of motions made prior to trial, during trial, and following the verdicts.

On May 22, 1965, at about 3:00 A.M., Ruth Clark and her daughter, Donna Clark, returned to their residence at 104 Lakewood Parkway, Burlington, Vermont, which was owned by one Merle Wood. They found four masked persons in the house. These persons were under the impression that Ruth Clark was Merle Wood's wife and demanded to know when he would arrive home. Ruth explained that she was not married to Merle Wood and that he probably could be located at the Country Store, Inc., Winooski, Vermont.

One of the men told Mrs. Clark that they had come for Merle Wood's money, and that she should telephone Wood and convince him to come to 104 Lakewood Parkway. In the event that Wood would not come, Mrs. Clark should tell Wood that she was coming over to the Country Store to talk to him about something urgent. Mrs. Clark was to tell Wood that he was to let her into the Country Store, when she arrived.

Mrs. Clark made the telephone call to Wood and he said that he would let her in when she arrived. Three of the men and Mrs. Clark drove to the Country Store and knocked on the door. However, Wood, who was sleeping in his office at the store, had fallen asleep and did not respond to Ruth's knock. Mrs. Clark and the three men returned to 104 Lakewood Parkway Mrs. Clark was then told to telephone Wood and say that she was coming over again. Wood agreed to let her into the store but again he fell asleep after the telephone conversation and did not respond to her knocks on the outer door of the store. The same three men and Ruth again returned to 104 Lakewood Parkway where the fourth man had again remained with the children.

where the fourth man, the respondent, had remained to take care of Ruth Clark's children.

Ruth was told to make a third telephone call to Wood which she did. Wood again agreed to let her into the store. After the call, Wood unlocked the outer of the two doors giving access into the Country Store. The inner door was a glass door which Wood left locked.

The same three men and Mrs. Clark drove to the Country Store. Ruth and at least two of the men entered the outer door and attempted to open the inner glass door which was still locked. Wood observed Mrs. Clark and the two strange men who were with her through a one-way mirror in his office which looked into the space between the two doors. Wood saw the two masked men who were with Mrs. Clark break the glass of the inner door with what appeared to be a revolver.

Wood then called the Winooski Police Department, and taking a gun, left his office to hide in the interior of the store. When the men saw that Wood was not in his office, they took Ruth and fled the store.

They were driving away from the store when a Winooski police car arrived and gave chase. One of the men was driving the car owned by Wood and used by Ruth Clark. During the course of the chase, the three men attempted to return to 104 Lakewood Parkway to pick up the fourth man who was staying with the children. The Winooski police officer fired several shots at the fleeing men. The noise of the sirens and the shots alerted the fourth man at 104 Lakewood Parkway and he fled the house.

On the morning of May 22, 1965, the respondent was arrested without a warrant by an officer of the Winooski Police Department as the respondent was walking on a road in the town of Colchester, Vermont. On the basis that respondent was the fourth man, the man who stayed with the Clark children at 104 Lakewood Parkway during the incident described, the information now considered was issued by the State's Attorney, resulting in the prosecution and conviction of the respondent.

County IV of the information charging the respondent with being an accessory to a kidnapping, a violation of 13 V.S.A. § 1403, was, on motion of the respondent, dismissed before trial with exceptions to the State. The action of the trial court in granting this motion not having been briefed by the State is waived, and is not here considered.

The remaining counts of which respondent was convicted are as follows:

'COUNT I.

On to wit, the 22nd day of May, 1965, did then and there without legal authority forcibly confine another person, to wit, Ruth Clark, within this State against her will and further held the said Ruth Clark to service against her will by forcing her to make telephone calls to the Country Store, Incorporated, and by forcing the said Ruth Clark against her will to proceed to Winooski and attempt to gain enterance to the Country Store at a time when the said Country Store, Inc., was closed for business, all in violation of Section 2401, Title 13, V.S.A.

COUNT II

On to wit, the 22nd day of May, 1965, did then and there in the night-time and with intent to commit a felony therein, to wit, kidnapping, a felony, feloniously break and enter a dwelling house owned

by Merle Wood, and occupied by Ruth Clark, situated at 104 Lakewood Parkway within the said City of Burlington, County of Chittenden, and in violation of Section 1201, Title 13, V.S.A.

COUNT III

On to wit, the 22nd day of May, 1965, did conspire together with three other persons, to wit: Joseph W. Cabrera, William Toomey, and Albert George Little for the purpose and with the intent to violently and forcibly rob a corporation, to wit: The Country, Store, Incorporated, a Vermont corporation doing business in Winooski in the County of Chittenden, all in violation of Section 1401, Title 13, V.S.A.'

In the State of Vermont only crimes punishable by death or by imprisonment in the state's prison for life are required to be instituted by grand jury indictment. 13 V.S.A. § 5651. Others may be prosecuted by a state's attorney's information, as was done here. 13 V.S.A. § 5652.

Since the Fifth Amendment of the United States Constitution requires that 'infamous crimes' be prosecuted by grand jury indictment, the respondent moved for a dismissal of all counts in the information on the ground that they charged infamous crimes. He contends that the Fifth Amendment grand jury requirement is now binding on the states as well as the federal judicial system because of the recent extensions of the due process clause of the Fourteenth Amendment.

This position is anticipatory, in that the United States Supreme Court has not rendered any decision imposing the grand jury requirement of the Fifth Amendment on state procedure. The test of due process as expressed in decisions under the Fourteenth Amendment has been one reviewing the substantive effect of the state's implementation of various civil rights. Variations in procedure will not constitute a violation of the Bill of Rights of the United States Constitution, as applied to the several states. Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 104, 54 S.Ct. 330, 78 L.Ed. 674, 677. Vermont has already met that test. The approval given to Vermont procedure by that court in Hodgson v. State of Vermont, 168 U.S. 262, 18 S.Ct. 80, 42 L.Ed. 461, 464, reviewing State v. Hodgson, 66 Vt. 134, 28 A. 1089, is still the law of the land. Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232, 239. See also, Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288, and concurring opinion Frankfurter, J., Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223, 1234, 1235.

The constitutionality of 13 V.S.A. § 5652 was settled in the case of State v. Stimpson, 78 Vt. 124, 62 A. 14, 1 L.R.A., N.S., 1153. In that case this Court held that common law felonies were not required, by any provision of our own State Constitution, to be prosecuted by indictment, and that section 5652, supra, then V.S. § 1867, was not unconstitutional.

ARTICLE 10th of the Vermont State Constitution provides in part:

'* * * nor can any person be justly deprived of his liberty, except by the laws of the land, or the judgment of his peers * * *.'

Notwithstanding the holding in State v. Stimpson, supra, respondent urges that Article 10th should be reevaluated to bring it into conformance with the increased concern for the rights of the individual.

We recognize that the concepts of due process are subject to constant change. However, we are not now disposed to overturn established construction of the fundamental law, long settled by paramount judicial decisions of both the Vermont and the United States Supreme Courts. The motion for a dismissal of the information was properly denied.

The respondent made timely objections to the admission of evidence which is claimed to have been obtained by an unreasonable search and seizure of a 1965 Chrysler automobile. This automobile was first observed by area residents Friday night, May 21st, 1965, parked on Sandy Lane in Burlington, Vermont.

It is to be recalled that the alleged offenses occurred in the early morning of May 22, 1965. The respondent was arrested in...