State v. Girouard, 135-76

• Decision Date: 14 March 1977
• Docket Number: No. 135-76,135-76
• Parties: STATE of Vermont v. Roy GIROUARD.
• Court: Vermont Supreme Court

Page 836

373 A.2d 836

135 Vt. 123

STATE of Vermont v. Roy GIROUARD.

No. 135-76.

Supreme Court of Vermont.

March 14, 1977.

Francis X. Murray, Chittenden County State's Atty., and Michael Goldsmith, Deputy State's Atty., Burlington, for plaintiff.

Paul D. Jarvis, Burlington, for defendant.

Before BARNEY, C. J., DALEY, LARROW and BILLINGS, JJ., and KEYSER, J. (Ret.), Specially Assigned.

DALEY, Justice.

In the early morning hours of June 14, 1975, in an altercation occurring on King Street in the City of Burlington, Richard Peers was shot to death. The defendant was indicted by the grand jury for murder in the first degree under 13 V.S.A. § 2301, and was found guilty of this offense by a jury in the Addison Superior Court.

Four issues are presented here on appeal. In the first issue, the defendant contends that the trial court erred in denying his pre-trial motion to suppress evidence which he claims was obtained by a constitutionally impermissible search. Secondly, he asserts that the court should have suppressed an in-court identification which he says was tainted by an out-of-court confrontation. The third issue, raised by a motion for a judgment of acquittal pursuant to V.R.Cr.P. 29(c), challenges the sufficiency of the evidence to support the jury's verdict of first degree murder. Finally, the defendant appeals the denial of his motion for a new trial made under V.R.Cr.P. 33, in which he alleged that the court failed to instruct the jury upon the questions of premeditation and deliberation in accordance with instructions requested by him.

His principal defense is predicated upon his claim that he was unable to form the requisite intent to kill because his mental capacity at the time of the killing was impaired by the use of alcohol, drugs, or both. For these reasons, in argument upon his post-trial motions in the trial court, and by his brief and argument before us, he requests that his conviction be reduced to murder in the second degree. Even if we were inclined to do so, which we are not, we find no Vermont statutory or constitutional authority for such action.

As is our duty, we have carefully examined the record in the light of the claims of error made by the defendant and, upon such examination, conclude that we should affirm the judgment of the trial entered subsequent to the jury's verdict which found the defendant guilty of murder in the first degree.

First, we shall deal with defendant's claims that his Fourth Amendment rights were violated by a constitutionally prohibited search and seizure. The following events culminated in the seizure in question.

At approximately 2:25 a. m. on June 14, 1975, Richard Peers and Gary Traub left a bar at 43 King Street in the City of Burlington where they had spent a part of the evening. While they were out on the sidewalk saying goodbye to some friends, a person, later identified as Leo Patch, informed them from a nearby porch that they were too noisy, and threw a large piece of wood at them. In the presence of a gathering crowd, an apparently loud, angry argument then ensued between Patch, Traub and Peers which culminated in an apology by the deceased and his friend who then moved easterly in the direction of the parked Traub vehicle. At about this time, the defendant came out of the Red Lion Bar on King Street and came across the street in response to a request for help from Patch. Shortly thereafter, seven or eight of the persons who had congregated at the scene started proceeding, with the defendant in the forefront, toward Traub and Peers, who were walking backward facing the oncoming group.

At some point, while moving toward Traub and Peers, some scuffling ensued; the defendant pulled out a gun and fired two shots in the air. Peers pleaded with the defendant to put the gun down, but another shot was fired. As Traub and Peers went toward Traub's car, Traub was thrown to the ground and Peers was simultaneously surrounded by several people, one of whom was hitting him with something described by one person as a pair of clippers. The defendant was then seen to emerge from under an upstairs porch across from where the deceased was standing, confer with another person, rush toward Peers, and fire two shots from close range. One bullet perforated the victim's heart, the other his liver. As the shots were fired, the crowd began to run in all directions, and as the victim fell, the defendant was seen going to and departing in a vehicle which was described in great detail to the Burlington police.

Shortly thereafter, the police observed the described vehicle and stopped it, immediately recognizing the defendant as the driver. Three visible occupants were ordered out of the automobile and were frisked for weapons; no weapons were found. As one of the officers peered in the open door on the front passenger side, looking for weapons, he observed a bottle of pills and two half-full containers of beer. At this time he was standing with his feet on the pavement and his upper body inside the open doorway. On retrieving the pills, he observed a supine passenger in the back seat and went to the back seat to remove him. While the passenger was being removed, another officer, who was leaning inside the front passenger door looking for weapons, noticed an unspent .32 calibre bullet lying on the floor just in front of the passenger seat. He seized it.

I. THE SEARCH

By his motion to suppress evidence, the defendant challenged the constitutionality of the warrantless search of the automobile he was operating at the time he was apprehended and the seizure of the .32 calibre bullet, the bottle of pills, and the two half-full bottles of beer found in the automobile.

Since all of the circumstances surrounding the defendant's being taken into custody and the searches of the vehicle he was operating were explored in a pre-trial suppression hearing by the trial court, our review will be of the ruling denying the defendant's motion to suppress. It is true that during trial the defendant objected to the introduction of the .32 calibre bullet found in the automobile, but this objection was upon a ground having no bearing upon the issues presented at the suppression hearing.

The trial court, having heard the evidence, made findings of fact and concluded that police officers Strong and Garrow had probable cause to search the vehicle in question; a reading of its findings and the legitimate inferences to be drawn therefrom show that it determined that exigent circumstances existed.

The defendant argues that the search was not incident to a lawful arrest, was not justified by the 'plain view' or 'moving car' doctrines, and was not supported by the existence of probable cause to search. However, we believe that the judge's finding of constitutionality and legitimacy was under the socalled 'auto exception' as enunciated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and subsequent cases. Therefore, our review will be in that frame of constitutional reference, corresponding with citations employed by the trial court in its conclusions of law.

The automobile exception, as it has been enunciated and applied by the United States Supreme Court and other appellate courts, has been the subject of a penetrating analysis by the Honorable Charles E. Moylan, Jr. in a law review article: The Automobile Exception: What It Is and What It Is Not-A Rationale in Search of a Clearer Label, 27 Mercer L.Rev. 987 (1975).

Judge Moylan has also published a book entitled The Right of the People to be Secure (1976). In this latter publication Judge Moylan presents an outstanding exposition of the various types of searches and seizures recognized as being constitutionally valid under the Fourth Amendment. Among the opinions authored by Judge Moylan having to do with the warrantless search of an automobile is King v. State, 16 Md.App. 546, 298 A.2d 446 (1973). As a starting point in our discussion of the issue presented, we quote from this opinion at pae 449:

The warrantless search of an automobile, under appropriate circumstances, is a long recognized exception to a fundamental proposition. That proposition is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.' Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Brown v. State, 15 Md.App. 584, 586, 292 A.2d 762 (1972). The 'automobile exception' was specifically established in 1925, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and it has been well delineated, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Collidge v. New Hampshire, 403 U.S. 443, 458-464, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The well-delineated preconditions to its reasonable invocation are 1) probable cause to believe that the vehicle contains evidence of crime and 2) exigent circumstances.

We shall now discuss the preconditions, which in our opinion support the decision below.

A. PROBABLE CAUSE

The defendant asserts that there was no probable cause to search his automobile at the time it was stopped, principally arguing upon the premise that since the police must have lacked probable cause to arrest, they also lacked probable cause to search. Such contention is not viable under the circumstances found by the trial court. We agree that the search was not made as an incident of the defendant's arrest, which did not occur until hours later. However, lack of probable cause to arrest does not mean that probable cause to search is also lacking. The Supreme Court has stated that '(t)he right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the...