State v. Connolly

• Citation: 350 A.2d 364,133 Vt. 565
• Decision Date: 02 December 1975
• Docket Number: No. 96-74,96-74
• Parties: STATE of Vermont v. Edward CONNOLLY.
• Court: United States State Supreme Court of Vermont

Page 364

350 A.2d 364

133 Vt. 565

STATE of Vermont v. Edward CONNOLLY.

No. 96-74.

Supreme Court of Vermont.

Dec. 2, 1975.

Rehearing Denied Dec. 29, 1975.

Stephen W. Webster, Orange County State's Atty., Randolph, for plaintiff.

Robert Edward West, Defender Gen., Rutland, and Charles S. Martin, Appellate Defender, Montpelier, for defendant.

Before BARNEY, C. J., and SMITH, DALEY, LARROW and BILLINGS, JJ.

LARROW, Justice.

Respondent Connolly was tried by jury in the District Court of Vermont, Unit No. 5, Orange Circuit, on an information in three counts, charging him with taking a wild doe out of season on August 8, 1973 (10 V.S.A. § 4745), taking the doe by illegal means, an artificial light (10 V.S.A. § 4747), and possessing parts of a wild deer, illegally taken by artificial light and out of season (10 V.S.A. § 4781). He was found not guilty on the first two counts, but guilty on third count of illegal possession. His motion for judgment n.o.v. was denied, and he has appealed the judgment of conviction. Previous to trial, and after hearing, the trial court made findings of fact and denied his motion to suppress evidence allegedly procured without a warrant, by search conducted at respondent's residence in violation of his fourth amendment rights. The admission of this evidence at the trial is the principal basis for this appeal, respondent contending error in its admission and, without it, a lack of sufficient evidence to sustain a guilty verdict.

The facts surrounding the search in question are largely undisputed, and were found in detail by the trial court at the pre-trial suppression hearing, Around midnight August 8, 1973, supervising game warden Dawson, with associates, arrested one Stanley Woodward with parts of a fresh-killed doe in his car. Woodward told them respondent Connolly had actually killed the doe, they had split it up, and Connolly had just left with his share. He also stated Connolly lived at 9 Pearl Street in Randolph Village, and could usually be found either there or at the Midway House, a restaurant. Dawson sent some men to the Midway House, and with others went to 9 Pearl Street. He was met at the door by a Mrs. Francis, found to be an undivorced woman living with the respondent for several weeks, and described by counsel as his 'co-tenant.' The scope of their relationship is not here material, as respondent does not claim she lacked authority to consent to a search.

At the door, Mrs. Francis informed the officers that respondent was not home, and in response to Dawson's inquiry whether they might come in to look for Mr. Connolly, she said to come in. They searched the house for the respondent, who was not there. Dawson noticed fresh blood on the floor near the refrigerator, opened it, and saw parts of a freshly killed doe. From experience, he could tell it had been freshly killed. Mrs. Francis denied knowledge of how the meat got in the refrigerator, and the wardens seized and secured it for evidentiary purposes. They then watched the house for several hours, but respondent did not appear.

From the foregoing, the trial court concluded that the risk of the evidence being destroyed or disposed of, plus the danger of losing 'the distinctive characteristics of freshly killed deer meat' constituted exigent circumstances justifying the warrantless search, evidently relying upon People v. Dumas, 9 Cal.3d 871, 109 Cal.Rptr. 304, 512 P.2d 1208 (1973). Dumas involved the warrantless search of an automobile after a valid search of an apartment led to discovery of the car keys. We do not regard its reasoning, even if we subscribed to it, as controlling here because it did involve an automobile, a factor commonly recognize as requiring less justification for search, and greater danger of evidence destruction, than a dwelling house.

We would first treat of respondent's claim for judgment n.o.v. It is based upon the assumption that the evidence in question should have been excluded, and that without it there was not enough evidence to justify conviction. We do not agree. The argument is largely predicated upon the assumption that by its verdict of not guilty on the first two counts the jury necessarily found the testimony of Woodward totally incredible, so that, without the controverted evidence, they had nothing upon which to convict. The fallacy of this argument is that it overlooks the prerogative of the jury, as the factifinding body, to believe some of a witness' testimony without believing it all. They could well have considered Woodward truthful in his story of dividing the meat with Connolly, but unworthy of belief when he stated Connolly rather than himself did the actual taking. His testimony had some corroboration, from the meat found in his own home, the story of an eyewitness who saw Connolly and Woodward together, and some evidence of an attempt by respondent to fabricate an alibi. Believing the part about dividing the carcass would be enough to sustain a conviction, for the statute does not require the possessor to be the actual killer. (10 V.S.A. § 4781). And, a trier of fact has the right to believe the testimony of a witness in part and to reject it in part. Ohland v. Dubay, 133 Vt. 300, 336 A.2d 203 (1975), and cases there cited. Respondent's claim of error in denying his motion for judgment n.o.v. is not sustained. While illegal possession, actual or constructive, involves knowledge of the illegality of the taking, this element is supplied by the calendar; the other elements by portions of Woodward's testimony which the jury must have believed.

Respondent's other claim of error has more merit, assuming it is properly before us. The State claims that it is not, because the evidence in question was not objected to at trial. Respondent's rights, it says, were thereby waived, even if the trial court was in error with respect to its suppression ruling.

The State's claim has some merit, and is not without case law support. Under Rule 41 of our Vermont Rules of Criminal Procedure, adapted directly from the federal rule of the same number, the weight of authority seems to be that in the absence of further evidence on the question of admissibility new objection upon trial is not necessary, particularly where the trial is before the same judge who ruled on the pre-trial motion. Waldron v. United States, 95 U.S.App.D.C. 66, 219 F.2d 37 (1955); United States v. Whitlow, 339 F.2d 975, 980 (7th Cir. 1964); Williams v. United States, 105 U.S.App.D.C. 41, 263 F.2d 487 (1959). For cases arising under our rule, the federal decisions would, of course, be authoritative. (Cf. Reporter's Notes, V.R.Cr.P. 1). In this case, however, they are at best persuasive, since the case was brought before the effective date of our Criminal Rules, October 1, 1973. V.R.Cr.P. 59(a).

We do not consider, however, that the adoption of our Criminal Rules made any significant change in Vermont law in this particular. There has been no prior decision squarely on point, but we think that there was implied acceptance of the non-necessity of contined objection expressed in State v. Blondin, 128 Vt. 613, 270 A.2d 165 (1970), where, in denying appellate review of a pre-trial refusal to suppress, then Chief Justice Holden...