State v. Durling

• Decision Date: 04 December 1981
• Docket Number: No. 219-80,219-80
• Citation: 442 A.2d 455,140 Vt. 491
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Thomas E. DURLING.

Page 455

442 A.2d 455

140 Vt. 491

STATE of Vermont v. Thomas E. DURLING.

No. 219-80.

Supreme Court of Vermont.

Dec. 4, 1981.

Motion for Reargument Denied Feb. 3, 1982.

John A. Rocray, Windham County State's Atty., Brattleboro, for plaintiff.

James L. Morse, Defender Gen., William A. Nelson, Appellate Defender, and Ruth A. Wishik, Law Clerk (on the brief), Montpelier, for defendant.

Before BARNEY, C. J., LARROW, J. (Ret.), and BILLINGS, HILL and UNDERWOOD, JJ. BARNEY, Chief Justice.

The defendant was convicted of the crime of unlawful trespass under 13 V.S.A. § 3705(c) after trial by jury. He brings this appeal, claiming numerous trial errors.

The factual background begins with a startled Brattleboro citizen being aroused from bed at about four o'clock in the afternoon when the bedroom window over his head opened and someone wearing a blue jacket with a fur trimmed hood stuck his head into the room. The window opened not to the outdoors but into a shed adjoining the room, and through it the bedroom occupant was able to see two people, and hear the intruder say to another person something to the effect that, "I think somebody's home." Upon a challenge by the occupant, the intruder claimed to be from the power company, then left.

The occupant went downstairs, discovered his back door kicked in and a window screen pried out, and saw two persons across the street. He then went back upstairs, called the police, and got dressed. He went outside once more, tracked the two in the snow, spotted them in a field walking west and pointed them out to an arriving police officer. Both were wearing blue jackets at the time. Everyone came together at the defendant's green pick-up truck parked on a farm utility road in a field.

The officer parked his cruiser so as to block the way of the pick-up. He then approached the truck as the defendant climbed into the driver's seat, no longer wearing his blue jacket. His companion was standing on the passenger side of the car, still wearing his blue jacket. As the officer had the two men in front of the truck checking them for weapons, the occupant of the bedroom at 475 Western Avenue, in response to a question from the officer, identified the two men as those he had seen at his premises.

The officer searched the cab of the pick-up and found a loaded revolver on the floor. The pat-down of the defendant's companion had revealed a speed loader case with two full speed loaders in it on his belt, speed loaders being devices for rapidly reloading revolvers. He also noted the presence of a blue jacket in the bed of the truck. Leaving a state police trooper in charge of the truck, the officer took the two suspects to the Brattleboro Police Station. By this time a snowstorm had begun. Another Brattleboro officer returned to the truck, and after some photographs were taken it was towed to a private garage, where it was inventoried. In the course of that procedure the pockets of the jacket were checked and a slip from an oil company reporting a delivery to the 475 Western Avenue address was found. The jacket and the delivery slip were ultimately produced at trial from police custody and both admitted into evidence, the jacket being offered by the defendant and the oil slip by the State.

At trial, the defendant challenged the admissibility of the oil slip on the ground that a complete chain of custody was not established. Testimony from the oil truck driver was also objected to on the ground that the State had not given notice of its intention to use this witness. A third contention was advanced that the State did not give notice of the existence of another potential witness who was present at the pick-up truck when the suspects were apprehended. This witness, who did not in fact testify, was not made known to the defendant.

At appropriate times and after the verdict of guilty the defendant moved for judgment of acquittal on the ground of insufficiency of the evidence to support a conviction. Additionally, he moved for a new trial on all of the other grounds previously noted. These issues are here for appellate review.

The defendant also seeks to raise in this Court challenges to the search of the truck and jacket, even though suppression was not sought below, nor objection made asserting Fourth Amendment search and seizure violations. Since appellate counsel is different from trial counsel, claims for reversal based on incompetency of counsel are also argued here.

There is a substantial policy interrelation that must be taken into account in dealing with the issues of failure to preserve questions for review in this Court by not making appropriate objections below, and claiming the right to review on appeal because of incompetency of counsel in that particular. It has been many times said, and the reasons frequently spelled out, that to preserve an issue for review there must have been made some challenge to its use or introduction during the proceedings below. State v. Demag, 118 Vt. 273, 277, 108 A.2d 390, 393 (1954); State v. Kasper, 137 Vt. 184, 190, 404 A.2d 85, 89 (1979).

As the Kasper case points out, a principal purpose of the rule is to provide an opportunity to take such corrective action as may be available during the trial, and avoid the prospects of endless retrials for corrective error so deplored by Wigmore in his authoritative treatise on the law of evidence. 1 Wigmore on Evidence § 18, at 322 (3d ed. 1940). Even beyond that concern is an issue frequently alluded to in our cases as the temptation to act unethically and in bad faith in the absence of any requirement that trial counsel's actions below might govern the availability of issues on appeal.

Trial counsel share the responsibility of calling attention to trial error when it takes place so that, if possible, the error may be overcome and the proceedings be a fair adjudication of the issues as between the defendant and the people of the State. State v. Murray, 123 Vt. 232, 233-34, 186 A.2d 193, 193 (1962). If trial counsel are free to let reversible error go unobjected to, it enables those who are ethically irresponsible to permit a trial containing such error to proceed, knowing that if the outcome is unfavorable a new trial is probably assured. State v. Hood, 123 Vt. 273, 277-78, 187 A.2d 499, 502 (1963).

If, as in this case, the assertion of incompetency of counsel is used to justify departure from the requirement of objection, parallel unfairness is possible. An error at trial, unobjected to below, becomes, on appeal with a change of counsel, a guarantee that an unsatisfactory verdict can be exchanged for a new trial. The basic rights of defendants in the criminal process certainly must be protected, but that protection cannot be extended to unprofessional and irresponsible manipulation.

For this reason, the claim of incompetency of counsel in this case does not make the allegations of error not claimed below eligible for review on direct appeal. Our cases have generally held that such challenges are collateral, and eligible for review under post-conviction proceedings. See In re Parizo, 137 Vt. 365, 369, 404 A.2d 114, 116 (1979). In the context of such a proceeding the facts can be explored and reported, with a review in this Court based on a developed record and a full evaluation of all relevant issues, rather than on the inadequate inferences of a trial transcript. Not only will the defendant have a chance to put his claim forward, but the conduct of his counsel can be expressly evaluated in the light of the circumstances disclosed by both the trial record and the evidence of the participants. Furthermore, this leaves the original appellate process free to conduct its review based on the record of the trial in the customary fashion, according to settled law.

Turning now to those claims of error appropriate to this appeal, we begin with the claim that the...