State v. Blondin

• Decision Date: 06 October 1970
• Docket Number: No. 62-70,62-70
• Citation: 128 Vt. 613,270 A.2d 165
• Parties: STATE of Vermont v. Gerald BLONDIN.
• Court: Vermont Supreme Court

Page 165

270 A.2d 165

128 Vt. 613

STATE of Vermont v. Gerald BLONDIN.

No. 62-70.

Supreme Court of Vermont.

Oct. 6, 1970.

James M. Jeffords, Atty. Gen., Fred I. Parker, Deputy Atty. Gen., and Kimberly B. Cheney, State's Atty., for the State.

Richard E. Davis, Barre, for defendant.

Motion to Reargue.

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

HOLDEN, Chief Justice.

The respondent is awaiting trial after indictment for the crime of murder. During this interval the respondent moved to suppress certain oral and written statements made to officers of the Vermont state police, without benefit of counsel, at the time of, and immediately following, his arrest. The bases for this aspect of the motion is that the statements were taken in violation of the accused's state and federal constitutional rights against involuntary self-in-crimination, contrary to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The motion further seeks to suppress and compel the return of certain personal papers taken from his cot in the place of his confinement at the Burlington Correctional Facility.

At the pretrial evidentiary hearing on the motion, certain facts concerning the seizure of the respondent's personal papers were stipulated. The facts concerning the statements given to the enforcement officers were not compromised. The evidence was in conflict and subject to opposing inferences. The court concluded its numerous findings by stating:

'From a consideration of the Respondent's words, acts and conduct, his age, his education, military training and experience as well as all other facts hereinbefore found as to the circumstances surrounding his apprehension and questioning we find that the Respondent consciously and intelligently waived his rights to counsel and to have counsel present when being questioned (by state police officers) both upon the Bartlett Road and at the K District office on April 15, 1969 as well as his right to remain silent.'

The court went on to hold that the respondent's statements to the state police were voluntarily given and the search and seizure of his personal papers was lawfully made. Accordingly, the motion to suppress was denied. At the request of the respondent, the lower court has passed the cause to this Court for review of that ruling before proceeding to trial.

It is the general rule that an appeal should not be permitted in criminal causes until a final verdict, adverse to the appellant, has been rendered in the trial court. 13 V.S.A. §§ 7401 and 7403. 12 V.S.A. § 2386 affords limited variance to the general rule by granting discretionary authority to the county and district courts to permit an appeal before final judgment for the determination of questions of law. 1959, No. 261, § 50. See State of Vermont v. Benjamin, 124 Vt. 20, 196 A.2d 507. This section contemplates the certification of those questions of law which the trial court conceives to be dispositive of the action and perhaps alleviate the burden of a needless trial.

Questions addressed to the admission or exclusion of evidence are neither suitable nor amenable to interlocutory appeals. The resolution of such questions before trial will seldom materially advance the termination of the litigation. Miller Automobile Co. v. State Highway Board, 126 Vt. 389, 391, 233 A.2d 48; Powers v. State Highway Board, 123 Vt. 1, 6, 178 A.2d 390.

The rule has particular application with salutary force and effect in the conduct of criminal cases. This is especially true where the admissibility of evidence depends on factual contentions, more appropriately resolved during the course of a plenary trial. Thus, it is the generally accepted rule that an appeal will not lie to review the denial of a pretrial motion to suppress evidence on the claim of illegal search and seizure. DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614, 617-620. See also In re Fried, 2 Cir., 161 F.2d 453, 1 A.L.R.2d 996, 1010, (concurring opinion of L. Hand, J., and dissenting opinion of A. Hand, J.); 24 C.J.S. Criminal Law §§ 1644-1647; Standards Relating to Criminal Appeals, § 1.3, (b)(i), Commentary d, Tentative Draft, A.B.A. Proiect on Minimum Standards for Criminal Justice. Compare, Idem. § 1.4(a) (iii). The reason and the purposes of the rule denying interim review of such questions are clearly stated by Justice Frankfurter in his opinion in DiBella.

Review of the lower court's denial of the motion to suppress will not necessarily settle the question. Appellate intervention at this stage of the proceedings-'makes for truncated presentation of the issue of admissibility, because the legality of the search too often cannot truly be determined until the evidence at the trial has brought all circumstances to light.' DiBella v. United States, supra, 369 U.S. at 129, 82 S.Ct. at 659. It is for this reason that the denial of a pretrial motion to suppress evidence does not prohibit reconsideration of the ruling when the case comes on for trial. Cogen v. United States, 278 U.S. 221, 224, 49 S.Ct. 118, 73 L.Ed.2d 275; Gouled v. United States, 255 U.S. 298, 312-313, 41 S.Ct. 261, 65 L.Ed. 647.

It appears that in the Gouled case the lower federal court, in advance of trial, denied the defendant's motion to suppress certain papers, of evidential value only, secretly taken by the Government from the defendant's office. Suppression before trial apparently was denied on a procedural rule akin to that applied in State v. Stacy, 104 Vt. 379, 401, 160 A. 257, 747. In this connection, it is noteworthy that the holding in State v. Stacy, rejecting the prior holding in State v. Slamon, 73 Vt. 212, 215, 50 A. 1097, has since been overturned by the application of the Fourth Amendment to state criminal trials in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933, 942.

The Supreme Court concluded that the...