State v. Emrick

• Decision Date: 05 October 1971
• Docket Number: No. 16-70,16-70
• Citation: 282 A.2d 821,129 Vt. 475
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. John EMRICK.

Page 821

282 A.2d 821

129 Vt. 475

STATE of Vermont v. John EMRICK.

No. 16-70.

Supreme Court of Vermont.

Oct. 5, 1971.

Kimberly B. Cheney, State's Atty., for the State.

Edwin W. Free, Jr., Barr, for defendant.

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

SMITH, Justice.

The defendant, John Emrick, was charged with breaking and entering the Seivwright Pharmacy in Montpelier, in the daytime, on November 24, 1968. Jury trial was held in the District Court, Unit 5, Washington Circuit, in Montpelier, on February 11, 12 and 13, 1970, and the jury returned a verdict of guilty. Judgment on the verdict was entered by the District Judge on February 13, 1970, and the defendant has taken his appeal here.

The evidence, viewed in the light most favorable to the State, discloses the following factual circumstances. On the morning of November 24, 1968, Mr. Lewis, the janitor for the pharmacy, was confronted at about 8 A.M. by a person in the pharmacy, with his hands covering his face, and ordered to lie face down on the floor. His feet and hands were tied, his mouth taped, and he was unable to clearly view his assailant, although he described him as having blonde or brown hair. At about nine o'clock, a pharmacist arrived, a Mr. Russell, who released the janitor, called the Montpelier Police Department, and found a number of drugs, both regulated and unregulated, missing from from the shelves of the pharmacy, with some scattered about the floor of the premises. Corporal George Patch, of the Vermont State Police, arrived at the scene and took a number of fingerprints, including some from a box of tape from which material had been used to tie up the janitor.

On the evening of December 22, 1968, a Mr. Lupien, a neighbor of the defendant in the same trailer park, discovered the defendant unconscious upon a bed in the trailer occupied by the defendant and a Mrs. Hepsley and her child. He called the State Police for assistance and Trooper Morris entered the trailer with Mr. Lupien, found the defendant still unconscious upon his bed, surrounded by a number of bottles of pills bearing the label of the Seivwright Pharmacy. The defendant was removed to a hospital. Defendant was arrested on December 23, 1968, charged with breaking and entering.

The first claim of error made by the defendant is that the lower court committed error in denying the motion of the defendant to produce two witnesses from without the State under 1o V.S.A. Sec. 6646, quoted below:

'If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in an action in this state, is a material witness in such action pending in a court of record in this state, a superior judge or a judge of a district court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. Such certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state. Such certificate shall be presented to a judge of a court of record of the state in which the witness is found.'

The defendant, in his motion to have the state produce two witnesses, one young lady from Maine and the other from the State of California, asserted that they were material to his defense. He refused to divulge the nature of the testimony which he believed would be given by the two witnesses, but did state they were 'absolutely necessary to his defense.' Without the citation of authority, the defendant argues that he was not required to state the type of evidence that such witnesses would present, if brought to Vermont. He claims that the refusal of the lower court to order the attendance of the witnesses denied the defendant a full and fair hearing which the defendant was entitled to under the enactment of the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases.

The defendant stated at the preliminary hearing on his motion that he did not know the address of either of the witnesses he desired. He refused to say upon what information he believed that the two witnesses were material to his case, nor what the materiality of their testimony would be.

For the defendant to obtain the relief provided for in 13 V.S.A. Sec. 6646, he had the burden of establishing that each of the witnesses requested to be brought from another state was a 'material witness.' This required at the preliminary hearing upon his application, a showing that such testimony would be material to his defense. The design of the statute requires the presentation of sufficient facts to enable the court of the state to which the requisition is directed to determine whether the witness should be compelled to travel to the trial in a foreign jurisdiction. This is a drastic procedure and the demands of due process must be satisfied as far as the witness is concerned. New York v. O'Neill, 359 U.S. 1, 8, 79 S.Ct. 564, 3 L.Ed.2d 585. State v. Smith, 87 N.J.Super. 98, 208 A.2d 171, 174. Annotation 44 A.L.R.2d 732, and cases cited therewith. The burden was upon the defendant to establish the materiality of the testimony which would be given by the witnesses he desired to have produced under the provision of the statute, and without such proof he was not entitled to have the benefit of compulsory process to secure witnesses from without the state under the statute.

The next briefed exception by the defendant is that it was an abuse of discretion on the part of the trial court to admit evidence concerning the discovery of drugs in the defendant's trailer as the evidence was too remote in time to be logically probative.

This objection relates to the evidence given by witnesses for the State as to the drugs found upon the bed in which defendant was lying unconscious, in his trailer, and to other drugs found about the trailer. Such drugs were positively identified as having come from the Seivwright Pharmacy by the pharmacists employed there, and as being part of the material taken on the morning that the drug store was burglarized.

As we have already seen, these drugs were discovered in the trailer of the defendant nearly a month after the alleged breaking and entering took place at the pharmacy. The contention of the defendant is that the admission of the evidence concerning the finding of the drugs in the trailer was too remote in time to show the ultimate fact sought to be proved which was that the defendant was the person who committed the burglary.

The defendant concedes that the question of remoteness rests largely in the discretion of the trial court. State v. Persons, 114 Vt. 435, 438, 46 A.2d 854. But the defendant contends that in this instance the court below abused its discretion. The case of the State against the defendant was admittedly based upon circumstantial evidence, and the court so charged the jury. In addition to the discovery of the purloined drugs strewn about the defendant, and within the premises which he occupied, there was further evidence that the fingerprints of the defendant were found in the pharmacy which had been burglarized, and even upon the tape box from which the material had been taken to bind the janitor. Under the evidence in this case, we cannot find that the lower court exercised its discretion on grounds, or for reasons, clearly untenable to an extent clearly unreasonable, which is the test in this jurisdiction. Gray v. Janicki, 118 Vt. 49, 50, 99 A.2d 707. Further, the defendant, upon whom rested the burden of showing the abuse of discretion, has not shown such claimed abuse. No error is found.

The defendant has next briefed his exception to the failure of the lower court to defendant's second...