State v. Gregory

• Decision Date: 11 September 1974
• Docket Number: No. 178-74,178-74
• Citation: State v. Gregory, 325 A.2d 359, 132 Vt. 550 (Vt. 1974)
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Harold GREGORY.

Page 359

325 A.2d 359

132 Vt. 550

STATE of Vermont v. Harold GREGORY.

No. 178-74.

Supreme Court of Vermont.

Sept. 11, 1974.

Neil S. Moss, State's Atty., for the State.

Robert Edward West, Defender General, Gregory A. McKenizie, Deputy Defender General, Montpelier and David S. Putter, Public Defender, Bennington, for defendant.

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

SMITH, Justice.

The State's Attorney of Bennington County charged the defendant with a lewd and lascivious act upon the body of a child under the age of 16 in violation of 13 V.S.A. § 2602. The defendant pleaded not guilty to the charge so made before the District Court of Vermont, Unit I, Bennington Circuit, and the judge of said court set bail at $5,000.00, to be in the form of $1,000.00 cash bail, and the remainder in surety satisfactory to the court.

The lower court sent the defendant to the State Hospital at Waterbury for a psychiatric appraisal. Upon the completion of such examination, and a return of the defendant to Bennington, the defendant through his counsel, the Public Defender of Bennington County, filed a motion for the review of bail pursuant to 13 V.S.A. § 7554(d). A hearing was held on the motion on August 14, 1974. Upon the conclusion of the hearing findings of fact were made by the lower court, and bail for the defendant was set at $5,000.00, the original amount. Defendant has come to this Court under appeal as authorized by 13 V.S.A. § 7556(b) and V. R.A.P. 9(a).

The findings of the lower court in refusing the motion of the defendant to be released from bail are brief.

1. That the defendant has no permanent roots in the community or any close relatives living in the immediate area;

2. That no argument was presented denying that the defendant had transported the infant child from Gage Street to the home of the defendant and, subsequently, returned the child to Gage Street;

3. That the offense charged is serious in nature and that the release of the defendant would constitute a danger to the public.

The factual situation presented to the lower court was that the defendant was a man of 68, in poor physical health, who lived alone in a trailer home, subsisting on a pension, social security payments, and by performing odd jobs. He had no previous criminal record, except for a minor traffic infraction in the State of New York, and had lived in Bennington for more than five years. He had no relatives living in the Bennington area.

The report of the psychiatrist who examined the defendant at the State Hospital was: '(I)f the evidence is true, he was legally insane at the time of the alleged offense, was legally sane when I saw him, and is now competent to stand trial.'

In determining which conditions of release will reasonably assure appearance and will not constitute a danger to the public, the judicial officer shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings. (13 V.S.A. § 7554(b).)

In State v. Webb, 132 Vt. ---, 320 A.2d 626, 629 (1974), Mr. Justice Keyser, in a well-reasoned and landmark opinion, considered the question of the safety of the community in the matter of setting bail.

The imposition of physically restrictive conditions of release pending trial upon a defendant whose release has been determined to constitute a danger to the public weighs heavily against the presumptions of innocence. It obviously interferes with the unhampered preparation of a defense and serves to inflict punishment prior to conviction....