State v. Crepeault

• Decision Date: 01 April 1969
• Docket Number: No. 59-68,59-68
• Citation: 252 A.2d 534,127 Vt. 465
• Parties: STATE of Vermont v. Paul W. CREPEAULT.
• Court: Vermont Supreme Court

Page 534

252 A.2d 534

127 Vt. 465

STATE of Vermont v. Paul W. CREPEAULT.

No. 59-68.

Supreme Court of Vermont.

April 1, 1969.

Harvey B. Otterman, Jr., Bradford, for petitioner.

James M. Jeffords, Atty. Gen., Alan W. Cheever, Asst. Atty. Gen., and Sten Lium, State's Atty., for the State.

Before HOLDEN, C. J., SHANGRAW, BARNEY and KEYSER, JJ., and LARROW, Superior Judge.

BARNEY, Justice.

This is a review of a post conviction proceeding held in Caledonia County Court pursuant to 13 V.S.A. § 7131 et seq. The original conviction received regular appellate review and was affirmed in 126 Vt. 338, 229 A.2d 245. In this proceeding the lower court declined to set aside the sentence, finding it lawfully imposed and finding no denial or infringement of the respondent's constitutional rights.

Assigned counsel represented the respondent in this proceeding and briefed and argued the issues before this Court. In addition the respondent submitted his own extensive brief on matters whose consideration he wished to insure. All issues raised have been given consideration.

The respondent was convicted of first degree arson of a dwelling referred to as the Finck home. This conviction, by jury, occurred in a retrial after the first trial had, before the close of the state's case, ended in the ordering of a mistrial by the presiding judge.

In this case, the respondent first came to the attention of the authorities when the state police in St. Johnsbury received a telephone call on January 20, 1965, from a neighbor about a shooting disturbance in and around the home of the parents of the respondent. While a police car was enroute to the scene a second call came in from the parents, who had retreated to the neighbor's home, stating that the respondent had been doing the shooting in the home and that he had shot at a car in the dooryard in or near which his father had been situated. With that report a second car was dispatched.

The first car went to the neighbor's and the second car went to the Crepeault home. The trooper in the second car saw the respondent standing in the yard of the home near his car, empty-handed and engaging in no unlawful activity at the time, and, having been informed that respondent had been shooting and was dangerous, the trooper, immediately and without warrant, took the respondent into custody. A loaded shot gun was in the respondent's car.

The respondent was placed in the cruiser for some fifteen minutes, where the detective on the scene talked with him for a few minutes, but did not question him, and he was then taken to St. Johnsbury, charged with breach of the peace by the state's attorney, and lodged in the county jail.

The state detective on the scene then talked with the respondent's father and mother, and went into their house with their permission to survey the scene. Another state police officer accompanied them, and the state officers were informed that the respondent had shot the cat, the parrot and also had shot up the TV set. The respondent, who was then 19, lived in this house with his parents.

As the group was leaving the Crepeault house, one of the officers noticed on the open back porch a sleeping bag with a name stenciled on it related to the name of the owners of a residence that had been destroyed by fire. Mr. and Mrs. Crepeault were present on the porch when the officer saw and inquired about the sleeping bag. Mrs. Crepeault said that it had been left there, along with some blankets, by a friend of her son's named Blainey.

At the time of this discovery the officers were present at the invitation and with the consent of Mr. and Mrs. Crepeault, had no warrant for the arrest of the respondent and had no search warrant. At that time they were not making any inquiry or search about the Finck fire. With the permission of Mrs. Crepeault the officer took the sleeping bag and blankets into possession.

On the following day, January 28, the officers went to the Blainey home and made inquiry. The boy was a minor fourteen years of age, and the questioning was carried on with the consent of his mother. From him the officers learned of the involvement of the respondent, with accomplices, in the setting of the Finck fire. On subsequent days other articles were obtained from the Crepeault house.

On January 29 the respondent was brought before the then Caledonia Municipal Court on the pending breach of the peace charge, where his minority was noted and he was ordered returned to the county jail pending appointment of counsel, which occurred that very day. Until this remand to jail he had not been questioned relative to the Finck fire.

On January 29, while at the jail and without counsel, the respondent (still a minor) was questioned by a representative of the state fire marshal's office and a state police officer about the Finck fire. The interrogation was apparently fairly prolonged, and resulted in the taking of a statement about the Finck fire and other misconduct. The respondent was not informed of his constitutional rights prior to any of this. This written statement was never introduced in evidence either at the trial or at the hearing on this petition. The involvement of the respondent and of the other participants was known to the officers from the Blainey interview of January 28, and was not the result of this questioning.

On February 1 the respondent pleaded not guilty and not guilty by reason of insanity to the breach of the peace charge. He was then committed to the state hospital for observation and subsequently returned to custody, having been found sane. On March 1 he was charged, by state's attorney's information, with the crime of first degree arson and arrested on a capias issuing out of Caledonia Court. The history of the breach of peace proceedings hereafter no longer concerns this proceeding, and this matter is reported in In re Crepeault, 125 Vt. 360, 215 A.2d 524.

The arson charge came to trial in the June Term, 1965, of Caledonia County Court. The respondent was represented by counsel and a guardian ad litem had been appointed. A notice of alibi was filed prior to this trial. During the presentation of the state's case, before the time for the respondent's evidence was reached, a mistrial was ordered. The respondent was not discharged and the case was later tried at the December Term of that court.

The trial resulted in the conviction of the respondent of first degree arson. The respondent did not testify and no statements of any nature made by him were introuduced in evidence. The sleeping bag and other articles found at the Crepeault home were not introduced into evidence at either trial.

At the second trial, at the close of the state's case, the respondent's counsel moved for a directed verdict of not guilty. Upon denial of that motion the case went to the jury on the basis of the state's case, without evidence from the respondent. The choice of testifying or not was left to the respondent after the consequences of either choice had been discussed and explained to him by his attorney. The alibi witnesses exhibited reluctance to testify, and, after interviewing them, it was the conclusion of respondent's counsel that their testimony would not be helpful to the respondent or maintain the alibi. For these reasons, and the related ethical considerations, the respondent's counsel decided against using these witnesses. Although the respondent now disputes this, it was the lower court's finding that, at the time, the respondent agreed with the decision to not call the alibi witnesses.

Another factor influencing counsel's decision that it was best to rest at the close of the state's case related to the written statement taken by the officers from the respondent at the county jail before counsel was assigned. Although the attorney realized that the admissibility of the statement was subject to a prior hearing on that issue, he had in mind the possibility that it might be available as an impeaching statement. The respondent himself had not offered any defense to the charges to his attorney. The findings draw what appears to be a justifiable inference that the statement, not in evidence, contained incriminating matter connected to the charge. It should also be noted that counsel...