State v. Cabrera
| Citation | 243 A.2d 784,127 Vt. 193 |
| Decision Date | 04 June 1968 |
| Docket Number | No. 367,367 |
| Parties | STATE of Vermont v. Joseph W. CABRERA. |
| Court | Vermont Supreme Court |
Patrick J. Leahy, State's Atty., Burlington, for the State.
John H. Bloomer, Rutland, for defendant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
This respondent was convicted as a principal in the magnificently inept criminal episode recited in State v. Barr, 126 Vt. 112, 223 A.2d 462. He raises five issues which we will take up separately.
He first complains that the prosecution should have been instituted by grand jury indictment, rather than by the state's attorney's information actually used. However his point is not the one raised in State v. Barr, supra, 116- 117, 223 A.2d 462, in which the grand jury requirement of the Fifth Amendment of the United States Constitution was sought to be invoked in a state proceeding, but denied. It derives directly from state law.
The authority of a state's attorney to prosecute by information is limited to crimes not punishable by death or by imprisonment in the state's prison for life. 13 V.S.A. § 5652. Beyond that limit, grand jury indictment is required. The crimes with which this respondent was charged were not punishable by death or imprisonment for life. But 13 V.S.A. § 11 permits the state to seek a life sentence on a felony charge following conviction of three felonies. This was a potential applicability in this respondent's situation, and is the basis of his claim.
However, this provision was not available to the state unless appropriate notice of that intent was given, by process, to the respondent, just as such notice must be given in other cases where repeated offenses may increase the penalty. State v. Cameron, 126 Vt. 244, 249, 227 A.2d 276. Since, on that account, the life sentence option was not open in this case, the provisions of 13 V.S.A. § 5652 did not bar the state's attorney from proceeding by information. This same issue was raised by the respondent in a separate habeas corpus petition, and its disposition is controlled by the decision on this issue made in this case.
In connection with this appeal the respondent has filed an affidavit which he claims supports his contention that he was handicapped in his exercise of his right to counsel. That affidavit forms no proper part of the record on appeal and is not before us. To avoid misunderstanding, certain comments may be appropriate, however. The record shows the respondent to have been represented by assigned counsel at all times before the county court, as well as in preliminary proceedings before the municipal court. He was never prevailed on to change his not guilty plea, and went to trial with counsel of his choice. No statements, admissions or confessions of his, if such existed, were introduced against him, nor were any of his material possessions, taken from him while he was in custody, received in evidence against him. At his request, after trial, new counsel was assigned and has prosecuted this appeal. There is no showing in the record of the slightest prejudice, but, rather, a scrupulous regard for his rights, including the right to counsel, was evidenced at all times by the county court.
The respondent claims prejudice because of the delay between the time he was taken into custody and the date of his trial. This right is personal to the respondent and requires some kind of timely assertion, particularly, where, as here, the accused had counsel. State v. Mahoney, 124 Vt 488, 491, 207 A.2d 143. The record discloses no motion, at any time, in the lower court asking to bring the matter on for trial or seeking dismissal for want of prosecution. On the other hand, as in the Mahoney case, supra, counsel for the respondent sought to delay trial on occasion, contrary to the wishes of the trial court, but for legitimate purposes, such as taking depositions. The implementing of the respondent's request for particular counsel also had the effect of delaying matters, in the face of rather strong pressure by the court to bring the matter to trial. His claim of prejudice is not sustained by the record.
In connection with this claim the respondent alleged that the prosecutor used the entry of nolle prosequi as a device to prolong his custody and delay the trial. Let it be unmistakably clear that this Court does not in any way condone such practices. But an examination of the record is persuasive that this was not the circumstance here. Moreover, it is the obligation of the respondent to establish the impropriety, and he has not done so.
The respondent asks us to find error in the reception of a witness's answer that suggested that he might have had other and previous difficulty with the law....
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Cabrera v. Smith, Civ. A. No. 5650.
...the Vermont Supreme Court, where he did raise most of the same issues now before this Court. The judgment was affirmed. State v. Cabrera, 127 Vt. 193, 243 A.2d 784 (1968). On May 20, 1966, the petitioner also filed a writ of habeas corpus in this Court before Judge Gibson. It was denied bec......
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State v. Girouard
...has not here shown that he has been deprived of the right to a speedy trial by other than his own actions. See State v. Cabrera, 127 Vt. 193, 195-196, 243 A.2d 784 (1968), cert. denied, 393 U.S. 968, 89 S.Ct. 404, 21 L.Ed.2d 379 (1968); State v. Mahoney, 124 Vt. 488, 491, 207 A.2d 143 (1965......
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State v. Jones
...(1987), we have emphasized that we do "not in any way condone" the use of a nol pros as a device to delay a trial. State v. Cabrera, 127 Vt. 193, 196, 243 A.2d 784, 787 (1968). It is consistent with the wording of the rule and the nol pros power of prosecutors to hold that the court's power......
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State v. Blaine, s. 49-73
...to charge on this particular was not excepted to. In this posture of the record, a claim of error cannot be supported. State v. Cabrera, 127 Vt. 193, 243 A.2d 784 (1968); State v. Hood, 123 Vt. 273, 277, 187 A.2d 499 (1962). Only in the context of 'glaring error' so grave and serious that i......