State v. Berard

• Decision Date: 05 February 1974
• Docket Number: No. 44-73,44-73
• Citation: 132 Vt. 138,315 A.2d 501
• Parties: STATE of Vermont v. Frank J. BERARD, Jr.
• Court: Vermont Supreme Court

Page 501

315 A.2d 501

132 Vt. 138

STATE of Vermont v. Frank J. BERARD, Jr.

No. 44-73.

Supreme Court of Vermont.

Feb. 5, 1974.

Kimberly B. Cheney, Atty. Gen., William T. Keefe, Asst. Atty. Gen., and Paul F. Hudson, State's Atty., for the State.

Langrock & Sperry, Middlebury, for defendant.

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

KEYSER, Justice.

The defendant was indicted by the grand jury in Windsor County for murder in the first degree of Raymond Lestage to which he pleaded not guilty. Subsequently, trial by jury in Windsor County Court, at which defendant did not testify, resulted in a verdict and judgment of guilty. Appeal to this Court is mandatory by statute.

Three issues are presented for our decision:

1. Was the admission of evidence of prior crimes committed by defendant error?

2. Was defendant's cross-examination of prosecution witness Linda Badore unduly restricted?

3. Was the exclusion of the 1968 and 1969 State Hospital psychiatric records of Linda Badore error?

On appeal the evidence is to be reviewed in the light most favorable to the prevailing party, here the state, excluding the effect of any modifying evidence. Mitchell v. Amadon, 128 Vt. 169, 171, 260 A.2d 213 (1969). The evidence discloses the following facts.

The accused lived on North Street in Burlington as did one Ray Rebideau. Prosecution witness Linda Badore lived on Curtis Avenue in Burlington. She had known Berard intimately and Rebideau a few months prior to Saturday, August 12, 1972. The victim, Raymond Lestage, lived in Boston but was in Burlington on August 12th. He had known Berard for years but only met Rebideau and Mrs. Badore at that time. Lestage was to return to Boston that day and the defendant offered to give him a ride. Berard knew the owner of the Ho-Hum Motel in South Burlington and borrowed his 1967 Lincoln Continental, with registration plates Ho-Hum attached, to make the trip.

During the evening of August 12th, the defendant, Rebideau, Mrs. Badore and Lestage spent some time at Jim's Cafe and the Veterans of Foreign Wars Club in Burlington drinking and in conversation. Berard invited Mrs. Badore to ride to Boston with him and the other two men. All four of them left the VFW Club after midnight with the defendant driving the Lincoln. Mrs. Badore rode in the middle of the front seat. Lestage was beside her and Rebideau sat in the rear. The defendant had a loaded pistol in his belt. Also there was a shotgun in the car which had been picked up by Berard before leaving Burlington.

The defendant drove the car on Interstate 89 to the Bethel exit, then proceeded south on Route 14. After leaving Interstate 89, defendant stopped the car. He and Rebideau got out and went back of the car for a few minutes. Lestage had been bothering Mrs. Badore on the trip and when they returned she asked defendant what she was supposed to do about it. In response defendant told her, 'not to worry about it because he was going pretty soon anyway', and he also told her the next time I stop to duck. Shortly, the defendant again stopped the car by a cemetery in Royalton. Lestage awoke and was upset because they had left the throughway.

After an exchange of a few words, Lestage got out of the car and apologized to Rebideau. He then walked a few feet from the car and stood there with his back to it. Mrs. Badore heard a shot and saw Rebideau sitting in the back seat with the shotgun pointed out the car window. Lestage fell forward. The defendant said 'wait' to Rebideau, then got out and walked around the car. He told Mrs. Badore if she 'was going to be sick to get out of the car, that Lestage was going.' He then went to where the victim had fallen. When Mrs. Badore looked again Lestage and the defendant weren't there but were further off and she again heard shots.

During this time, two cars went by. The driver of the first car, who was driving in a southerly direction, saw a car parked by the Royalton Cemetery and stated the first three letters of the number plate were 'Ho-H.' The occupants of the second car, which was travelling in a northerly direction, identified the Lincoln Continental parked beside the cemetery bearing the number plate 'Ho-Hum.' As they passed, they reported hearing two or three 'loud bangs.' This car turned around a short distance up the road, passed the Continental again, and proceeded south to South Royalton.

Defendant returned to the car, got the shotgun from Rebideau and said he 'had to finish him.' He asked Mrs. Badore to drive up the road, turn around, then come back and pick him up. In doing so she heard one more shot.

After getting into the car defendant remarked that the victim got up and ran after being shot by Rebideau. He asked Rebideau if this 'was his first time out of the gate, his first time shooting anybody or being around where anybody was killed.' He replied it was. Defendant then said, 'that the first time he'd probably get a little sick' and that 'it was the fourth or fifth time for him.' Defendant admitted to Mrs. Badore that he fired the shotgun close to the victim's head.

After leaving the scene, defendant drove the car south on Interstate 89. The parties returned to Burlington around 4:30 P.M., Sunday, August 13th, after having travelled to Bellows Falls, Vermont, Claremont, New Hampshire and Fairlee, Springfield, Proctorsville, Ludlow and Rutland, Vermont. The Lincoln car and the parties were identified in several of these places by the testimony of witnesses.

When Lestage left Burlington with defendant, he had a small suitcase containing personal effects and clothing. The case was thrown out of the car while on Interstate 89 near the Quechee entrance. The suitcase and articles in or near it, found on October 6, 1972, by highway workers, were identified by Mrs. Badore and Mrs. Lestage and introduced into evidence. Also, while the parties were parked in Fairlee, Mrs. Badore discarded a road map and two cups in which coffee had been obtained at a Dunkin Donuts shop in Claremont. These were recovered by the state police with her aid and placed in evidence.

At Bellows Falls Rebideau tried to get a room at a hotel without success. While he was absent from the car the defendant said to Mrs. Badore that he didn't think she realized what had happened. When she said she did, he said, 'We just killed a guy. There's a guy dead back there, and I don't think its hit you yet.' She replied that maybe she hadn't.

The victim's body was discovered in the Royalton Cemetery early that morning by a state highway employee which triggered an investigation by the state. There were large gaping wounds in the upper area of his left shoulder and in the back of his head. There were also .22 caliber pistol slug wounds in his buttocks and head.

The shotgun used in the homicide was an old, short-barrelled firearm. It was found in Williston on August 22, 1972 over the bank on Route 2A in the area of the Green Mountain Power Company bridge. The pistol was discovered by Joseph Bartlett in a pile of wood on his property two or three days after the Lestage homicide. It was owned by a Robert Blanchard, Bartlett's brother-in-law, and given to him by Bartlett. Blanchard told State Trooper Vinton that he had loaned the .22 H & R pistol to Bartlett two or three days before the homicide and when the gun was returned by Bartlett he told Blanchard that it was used in the Lestage homicide. Ballistics examination proved this to be correct.

Defendant's first claim of error was to the admission of certain testimony of Mrs. Badore given on direct examination.

This witness had testified concerning the events at the scene of the murder. Her interrogation then turned to what transpired immediately after defendant had returned to the car and shortly after leaving the scene of the crime.

The following interrogation took place.

Q. Did he (Rebideau) say anything?

A. He said that Ray Lestage sure had a lot of heart.

Q. Did you hear any response to this comment?

A. Frank (Berard) agreed.

Q. Did he (Berard) say anything else?

A. He said that after Butch (Rebideau) had shot him the first time his arm was just hanging and he got up and ran.

Q. Did he say anything else?

A. He asked Butch if this was the first time out of the gate, his first time shooting anybody or being around where anybody was killed.

Q. What did he say?

A. He said it was.

Q. Did Mr. Berard make any response to this?

A. He said that the first time he'd probably get a little sick. And he said that it was the fourth or fifth time for him.

Without any delay defendant's counsel moved for a mistrial asserting the last statement attributed to defendant was prejudicial and immaterial. The evidence came in without objection and without any attempt to stop the witness even though defendant knew of the alleged evidence. The court denied defendant's motion. No other motions were interposed by defendant at any time respecting this evidence and none have been called to our attention.

A motion for mistrial is addressed to the trial court's discretion, and the denial of the motion will be held erroneous only if prejudice is affirmatively made to appear. Rash v. Waterhouse, 124 Vt. 476, 477, 207 A.2d 130 (1964); Lewis v. Gagne, 123 Vt. 217, 220, 185 A.2d 468 (1962).

Prejudice must be established by the party claiming it. Id. Usually the matter of evidence which is the subject of such a motion calls for such action by the trial court as justice may require. Lewis v. Gagne,supra, 123 Vt. at 220, 185 A.2d 468.

Controlling here is what Justice Barney wrote in Rash v. Waterhouse, supra, 124 Vt. at 477, 207 A.2d at 132: 'Defendant's standing to argue this issue is compromised by the state of the record, because, by failing to object to the testimony, the defendant waived his right, if any, to have this evidence stricken.' Again quoting from the opinion: 'As we have seen, the evidence now claimed to be prejudicial and a proper basis for a mistrial,...