State v. Brisson

• Decision Date: 02 June 1964
• Docket Number: No. 69,69
• Citation: 124 Vt. 211,201 A.2d 881
• Parties: STATE of Vermont v. Harris BRISSON.
• Court: Vermont Supreme Court

Page 881

201 A.2d 881

124 Vt. 211

STATE of Vermont v. Harris BRISSON.

No. 69.

Supreme Court of Vermont.

June 2, 1964.

Peter F. Langrock, State's Atty., Middlebury, for plaintiff.

John T. Conley, Middlebury, for defendant.

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

BARNEY, Justice.

Ten days elapsed between the selection of the jury and the trial of this criminal case. During that time the jurors were allowed to return to their homes and usual pursuits. The charge to be tried was a misdemeanor, breach of the peace involving in assault. Cautionary instructions were given by the municipal court, directing them to avoid exposure outside of court to anything pertaining to the case for which they had been selected, so as to prevent prejudice to the interests of the State or the respondent.

This was not enough, says the respondent. A fair trial cannot be had, in his view, after the jurors have been allowed, over his objection, to be at large in the community for so long a period, informed as to the parties and the nature of the matter eventually to be submitted to them. It is his contention that there is no logical basis for allowing with respect to misdemeanors what is prohibited with respect to felonies by State v. Anderson, 119 Vt. 355, 125 A.2d 827.

The State challenges the respondent's position from two aspects. In the first place, the adequacy of the steps taken to preserve the issue by the respondent is questioned. Secondly, the State insists that, in any event, basing this procedural difference on the distinction between a felony and a misdemeanor is valid.

The record furnished us is not in the form of a complete transcript. The portions set out contain the following statement by counsel for the respondent:

'At this time, may it appear as a matter of record, that the jury in this case was drawn on the 17th day of September, 1963. That previous to the jury being drawn the attorney for the respondent informed the court that in the respondent's opinion the drawing of the jury and allowing them to separate was contrary to the laws of the State of Vermont. The court informed the respondent that it was going forward to draw the jury and that the respondent could go to the Supreme Court in the matter.

'Now, the respondent excepts to the allowance by the court of the separation of the jury after it was drawn. May the record show that the jury were impanelled and that the State's attorney addressed the jury stating the nature of the case and the parties involved therein. * * * On the 17th of September, 1963. The respondent excepts both as a matter of law and as a matter of discretion of (sic) the court's allowing the jury to separate from September 17 to September 26 on which date the case is to be tried.'

The court responded, 'We will note your exceptions. We will overrule them and allow you an exception.' The respondent then moved that the jury be dismissed on the grounds just stated. This motion was overruled by the court and the respondent allowed an exception.

The State questions the adequacy of this statement, made on September 26, 1963, at the time of the swearing in of the jury. It says the record of the proceedings on September 17, 1963, contains no written reference to any such discussion. However, the lower court recognized the issue as legitimately raised and did not find it necessary to correct the respondent's contention that the matter was put before it in fact on September 17, 1963. The record furnished indicates an objection was timely made to the proposed action of the trial court and that the court understood it to be timely, and, further, that the court fully comprehended the position of the respondent in making its ruling. The standards of State v. Stone, 123 Vt. 95, 95-96, 181 A.2d 840, were adequately met.

The propriety of separation of juries in any given situation is not a matter specifically dealt with by our statutes. The governing rules have derived from practices developed by our courts over their long history, and from the traditions of our common law heritage. But they are not rules of opposites, with separation either altogether prohibited on the one hand, or absolutely permissible on the other. Instead, it is a difference of degree. The standards begin with the most rigid, in capital cases, where no separation at all is allowed. State v. Godfrey, (1817) Brayton, 170. Next in other felony cases, separation is not allowed unless the respondent consents to it. State v. Anderson, supra, 119 Vt. 355, 361, 125 A.2d 827. Finally, in misdemeanor cases, like civil cases, the trial court's discretion in the matter becomes operative. State v. Lawrence, 70 Vt. 524, 530, 41 A. 1027.

It may be, as the respondent points out, that there are misdemeanors of seriousness as great or greater than some offenses defined as felonies. But we are not measuring the relative magnitude of various crimes here, we are determining at what point a more restrictive rule requiring the consent of the respondent can properly be reduced to the less rigid one...