State v. Berard

• Decision Date: 06 April 1976
• Docket Number: No. 224-74,224-74
• Citation: 356 A.2d 514,134 Vt. 220
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Frank J. BERARD, Jr.

Page 514

356 A.2d 514

134 Vt. 220

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

No. 224-74.

Supreme Court of Vermont.

April 6, 1976.

M. Jerome Diamond, Atty. Gen., and Phoebe Morse, Asst. Atty. Gen., Montpelier, for plaintiff.

Langrock & Sperry, Middlebury, for defendant.

Before BARNEY, C. J., and SMITH, DALEY, and LARROW, JJ., and KEYSER, J. (Ret.), Specially Assigned.

BARNEY, Chief Justice.

This is an appeal from the denial of a new trial moved for in accordance with V.R.Cr.P. 33, and based on the ground of newly discovered evidence. The original trial convicted the defendant of murder in the first degree of one Robert Lestage. See State v. Berard, 132 Vt. 138, 315 A.2d 501 (1974). The motion was brought after this Court had affirmed the conviction on appeal.

The evidence relates to one of the weapons used in the murder. It seems that, according to ballistics tests, a certain .22 caliber revolver was used in another homicide, as yet unresolved, some time between October, 1972, and January, 1973, with one Fitzgerald as the victim. During this entire time the defendant Berard was securely in custody.

In the Berard trial this same .22 caliber pistol was ballistically demonstrated to have been the weapon from which certain bullets found in Lestage's body were fired. A certain Blanchard testified to possession of the pistol from a time shortly after the Lestage killing on August 13, 1972, to sometime in October, 1972, when the gun was turned over to the police. The testimony of another witness named Bartlett was also involved in accounting for the gun in this particular period. In argument before this Court on a previous motion, the assistant attorney general who prosecuted Berard indicated his 'gut feeling' was that Bartlett or Blanchard, or both did not testify truthfully at that trial, but that he had no evidence to establish that as a fact.

The lower court found all these facts and determined that the newly discovered evidence was, at best, impeaching of the Blanchard testimony, which was itself collateral to the issue of Berard's guilt or innocence. The court also found that it was possible for this newly discovered evidence to be reconciled with the testimony given at the Berard trial. For these reasons it refused to grant a new trial.

One of the challenges made by the defendant to the denial of his motion for a new trial is couched in constitutional terms. He takes the position that the test of our cases relating to the probability of a different result, as pointed out in State v. Ciocca, 126 Vt. 184, 185-86, 225 A.2d 65 (1966) and State v. Jackson, 126 Vt. 250, 256, 227 A.2d 280 (1967) violates his right to have the evidence measure up to proof beyond a reasonable doubt.

It is everywhere acknowledged that the granting of a new trial is, in origin, a legislatively generated privilege and subject to the conditions imposed by enactment. The litigant has already had his trial, subject to the reasonable doubt standard. The issue now is whether there exist sufficient substantive matters to move the judge's discretion to grant the special relief of a new trial, consistent with the objectives of the remedy. The reasonable doubt standard is not applicable and the decision is for the appropriate judicial officer. State v. McSheffrey, 131 Vt. 329, 333, 306 A.2d 702 (1973). This test is recognized in United States v. Johnson, 327 U.S. 106, 111-12, 66 S.Ct. 464, 90 L.Ed. 562 (1946), which makes no reference to the applications of the reasonable doubt standard.

To prevail on a motion for a new trial, the moving party has the responsibility of establishing, to the satisfaction of the trial court, several propositions. If the ground is asserted as one of newly discovered evidence, it must be truly new and not merely undiscovered because of lack of diligence. State v. Brown, 122 Vt. 59, 63, 163 A.2d 845 (1960). That this evidence is new, in that sense, and that there was no lack of diligence on the part of the defendant with respect to it is unchallenged.

Next, as already noted, the moving party must demonstrate that this new evidence is of such character that it will give reasonable assurance that it will work a different result upon a retrial. State v. Ciocca, supra, 126 Vt. at 192, 225 A.2d 65. Closely related to this requirement is the condition that the evidence must be something other than merely cumulative or only of impeaching effect. State v. Jackson, supra, 126 Vt. at 254-55, 227 A.2d 280. These rules have been a part of our law for many years. See,...