State v. Blaine, s. 49-73

• Docket Nº: 206-73
• Citation: 133 Vt. 345, 341 A.2d 16
• Case Date: June 03, 1975
• Court: United States State Supreme Court of Vermont

Page 16

341 A.2d 16 133 Vt. 345 STATE of Vermont
v.
William L. BLAINE. Nos. 49-73, 160-73, 206-73, 29-74. Supreme Court of Vermont. June 3, 1975.

Page 17

[133 Vt. 346] Michael J. Sheehan, Windsor County State's Atty., White River Junction, for plaintiff.

Thomas F. Heilmann, Richard E. Davis Associates, Inc., Barre, for defendant.

William L. Blaine, pro se.

Before [133 Vt. 345] BARNEY, C. J., and SMITH, KEYSER, DALEY and LARROW, JJ.

[133 Vt. 346] LARROW, Justice.

These four cases involve the same respondent, and were consolidated for argument. Three of them arose from [133 Vt. 347] a series of incidents on the same day, and were separately tried by jury with resulting verdicts and judgments of guilty. The fourth is an unrelated charge of speeding in violation of local ordinance, tried by court with a like result. Respondent was represented by counsel in the first three trials, and appeared pro se in the fourth.

Particular relevant facts will be separately considered in our discussion of each case, but the general sequence of events on April 18, 1972, from which the first three charges arose, is fairly simple. Respondent injured his neighbor, one LaFlam, during an altercation near their common boundary fence, with a dog chain-leash. He went voluntarily to the Windsor police station to give his version of the incident. While conversing with one officer, another came into the room, told him he had a warrant for his arrest, and started to read it. Respondent then drew a gun, in one case claimed by him to be a toy, and pointed it at the arresting officer. This officer retreated promptly, locking himself out of the room; the other officer stayed in his chair, allegedly because he was hampered by his equipment. The respondent hurriedly left the station, and was arrested about sheriff, when he voluntarily returned sheriff, whken he voluntarily ruturned from New York State.

From this series of events arose three major prosecutions and trials. No. 49-73 is a charge of recklessly engaging in conduct which placed another person in danger of death or serious bodily injury, in violation of 13 V.S.A. § 1025. See State v. Cushman, 133 Vt. 121, 329 A.2d 648 (1974). It is based on respondent's pointing the gun at the police officer. No. 160-73 is a charge of aggravated assault, purposely or knowingly causing bodily injury to another with a deadly weapon, in violation of 13

Page 18

V.S.A. § 1024(a)(2). It arises from the altercation with LaFlam. No. 206-73 is a charge of escape from lawful custody of a police officer, contrary to the then provisions of 13 V.S.A. § 1501. It arises from respondent's departure from the police station.

No. 29-74 is an unrelated charge of exceeding a posted 25 m. p. h. automobile speed limit in the Town of Windson on October 21, 1973. A uniform traffic ticket was issued; trial was by court, with respondent appearing pro se.

[133 Vt. 348] No. 49-73

The information in this case charged the respondent with a violation of 13 V.S.A. § 1025, by recklessly engaging in conduct placing another person in danger of death or serious bodily injury. It arises from the incident at the Windsor police station, when respondent, advised he was being arrested on a complaint based on his altercation with his neighbor, drew a gun on a police officer and left the station. Despite respondent's testimony, in this case, that the gun was a toy, the evidence was overwhelming that the gun was both real and loaded, and no serious argument is here made to the contrary.

Respondent argues, however, that his actions were justified because the warrant upon which he was about to be arrested had issued without probable cause. The warrant in question was the one based upon the prosecutor's information involved in No. 160-73.

Beyond a tenuous argument to the effect that it must have issued without probable cause, because it issued after the prosecutor knew only one side of the story and was obtained in a matter of minutes, we are pointed to no authorities that the claimed illegality, even if it existed, would justify the actions of the respondent. The issue was not raised on the trial below.

Moreover, as we have previously held, in cases like this one arising before the effective date of our present Rules of Criminal Procedure, the issue of probable cause is one which was properly raised by pretrial motion, and which was waived if not so raised. State v. Perry, 131 Vt. 75, 300 A.2d 615 (1973); In re Morris, 126 Vt. 297, 229 A.2d 244 (1967). We note that it was not so raised either in this case, or in No. 160-73, the case in which the information issued. The argument has some ingenuity, but we are not persuaded that a claimed procedural defect, waived if not raised by motion, can be used as justification for armed assault.

The verdict and judgment in No. 49-73 must be affirmed.

No. 160-73

This was the second case tried by jury below, even though in point of time it was based upon the first occurrence. In substance the charge is aggravated assault, by purposely or knowingly[133 Vt. 349] causing harm to one LaFlam with a deadly weapon, a chain, contrary to 13 V.S.A. § 1024(a)(2). The chain in question was in fact a chain dog leash, testified to as used by the respondent doubling it up and swinging it. The incident arose from an argument between respondent and LaFlam, on or near a common boundary fence, and trial emphasis was on who struck the first blow, and with what.

Respondent claims two trial errors. The first is admission of the events related under No. 49-73, on the theory that respondent's flight to avoid arrest was evidence of guilt, to a degree making that a principal rather than a subsidiary issue, argument to the jury emphasizing this point, and failure of the trial court to instruct the jury that the probative value of flight was at best slight. The second is a claimed defect in the charge with respect to the lesser included offense of simple assault.

Respondent's first claim of error cannot be sustained. Examination of the

Page 19

record reveals that all of the evidence relating to the flight from the police station came in without objection. The argument to the jury was unobjected to. No request for instruction on the matter was made to the trial court. And the failure to charge...