State v. Hohman, 32-79

• Citation: 420 A.2d 852,138 Vt. 502
• Decision Date: 24 July 1980
• Docket Number: No. 32-79,32-79
• Parties: STATE of Vermont v. George Joseph HOHMAN.
• Court: United States State Supreme Court of Vermont

Page 852

420 A.2d 852

138 Vt. 502

STATE of Vermont v. George Joseph HOHMAN.

No. 32-79.

Supreme Court of Vermont.

July 24, 1980.

Reargument Denied Aug. 6, 1980.

M. Jerome Diamond, Atty. Gen., Richard A. Unger, Asst. Atty. Gen., Montpelier, and Raymond G. Bolton, Bennington County State's Atty., Bennington, for plaintiff.

James L. Morse, Defender Gen., William A. Nelson, Appellate Defender, Montpelier, and Welch & Graham, White River Junction, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

DALEY, Justice.

The defendant was originally charged with murder in the first degree for the killing of a young girl by strangulation. After a change of venue from Bennington to Addison Superior Court, a jury found the defendant guilty of murder in the second degree. 13 V.S.A. § 2301. On appeal to this Court, the conviction was reversed. State v. Hohman, 136 Vt. 341, 392 A.2d 935 (1978). Upon remand, the defendant moved for change of venue from Addison County. The motion was granted, and defendant was retried many miles from Bennington and Addison Counties in the Washington Superior Court upon a charge of murder in the second degree. The jury found him guilty of the lesser included offense of manslaughter. See 13 V.S.A. § 2310. In both trials, the State was represented by the state's attorney of Bennington County and the office of the Attorney General.

On appeal, defendant raises four claims of error. First, he claims that the trial court erred in failing to disqualify the state's attorney for alleged unethical pretrial conduct. Second, defendant claims error in the trial court's denial of his challenges to two jurors for cause. Third, defendant claims it was error not to allow him to absent himself from his trial. Finally, defendant objects to the failure of the trial court to grant him a bifurcated trial. We examine these claims in this order.

Shortly after the 1978 remand of this case, the state's attorney found himself in a battle for re-election. On November 6, 1978, he ran a large campaign advertisement in the Bennington Banner, a newspaper which circulates in both Bennington and Rutland Counties. The advertisement featured a photograph of the state's attorney, accompanied by the following message:

In 1976 I prosecuted State v. George Hohman and he was convicted of murder. The conviction was overturned because the judge allowed evidence to be improperly admitted, not because of prosecutorial misconduct. In 1978 I asked that the Court set bail at $75,000, however bail was set at $30,000.

I believe that the bail laws of this State should be changed to reflect a defendant's danger to the community. The Hohman case is the most important case pending. My opponent is disqualified from prosecuting George Hohman. If I am re-elected, I will vigorously prosecute Hohman and obtain a second conviction. Your support would be appreciated, Tuesday, November 7th.

Defendant promptly filed a motion to disqualify the state's attorney from prosecuting him. In it he asked the trial court, as he now asks us on appeal, to hold as a matter of law that the advertisement per se evinces such personal bias on the part of the state's attorney as to require reversal. The trial court denied this motion, stating that "(n)o credible evidence has been introduced to establish that Mr. Bolton is biased or prejudiced to the point that defendant would be deprived of his constitutional right to a fair and impartial trial."

We strongly condemn the conduct of the state's attorney in this case. The awesome power to prosecute ought never to be manipulated for personal or political profit.

The (state's attorney) is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935); see State v. Goshea, 137 Vt. 69, 76, 398 A.2d 289, 293-94 (1979); State v. Lapham, 135 Vt. 393, 406, 377 A.2d 249, 257 (1977); State v. Slack, 69 Vt. 486, 491, 38 A. 311, 312 (1897); State v. Magoon, 50 Vt. 333, 340 (1877); 12 V.S.A.App. IX, Code of Professional Responsibility, E.C. 7-13; American Bar Association, Standards Relating to the Prosecution Function §§ 1.1, 1.3 & commentary (Approved Draft 1978). For these reasons, it was error for the state's attorney to fail to disqualify himself, and it was error for the trial court to deny the motion to disqualify the state's attorney. Furthermore, because serious questions exist as to the ethical propriety of the state's attorney's conduct, we will refer this matter to the Professional Conduct Board. ^* See 12 V.S.A.App. IX, supra, D.R. 7-107.

As a general principle, error does not require reversal unless it is prejudicial to the defendant. See, e. g., State v. Lupien, 135 Vt. 30, 33, 370 A.2d 196, 198 (1977); State v. Rushford, 130 Vt. 504, 508-09, 296 A.2d 472, 475 (1972). While it is true, as defendant argues, that some courts have chosen to make prosecutorial bias per se reversible error as a matter of public policy, see Sinclair v. State, 278 Md. 243, 255 n.8, 363 A.2d 468, 475 n.8 (1976), we are inclined to join those courts that have required some prejudice. See United States v. Stanford, 589 F.2d 285, 299 (7th Cir. 1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244 (1979); United States v. Milanovich, 303 F.2d 626, 630 (4th Cir.), cert. denied, 371 U.S. 876, 83 S.Ct. 145, 9 L.Ed.2d 115 (1962); People v. District Court, 189 Colo. 159, 162-63, 538 P.2d 887, 888-89 (1975) (en banc); State v. Harris, 477 S.W.2d 42, 45 (Mo.1972). Unethical conduct, however worthy of censure, does not necessarily deprive a defendant of a fair trial, and is therefore distinguishable from prejudicial error. United States v. Stanford, supra, 589 F.2d at 299-300; United States v. Milanovich, supra; People v. Pearson, 404 Mich. 698, 725, 273 N.W.2d 856, 864 (1979). For this reason, we have previously stated that, "aside from our particular interest in professional conduct, we must also adjudicate between the interests of the people of the State of Vermont and those of the respondent." State v. Jackson, 127 Vt. 237, 238, 246 A.2d 829, 830 (1968). This latter duty requires a determination of the prejudice to the defendant under the particular circumstances of the case at hand. State v. Lawrence, 137 Vt. 597, 601, 409 A.2d 997, 1000 (1979); State v. Jackson, supra.

In light of the state's attorney's attitude as demonstrated by his campaign advertisement, it is clear that the defendant was prejudiced at the plea bargaining stage of these proceedings. Had defendant been convicted of second degree murder, the offense charged, we would be required to reverse the conviction. Because the jury convicted the defendant of the lesser included offense of manslaughter, however, reversal is not warranted. On this record, as a practical matter, it is apparent that defendant could not have negotiated a plea bargain to an offense lower than manslaughter. Therefore, the jury's verdict cured the prejudice that resulted from the state's attorney's attitude by giving the defendant the best result he could have attained through plea negotiations.

Beyond the pretrial stage, we have carefully examined the record, and we are unable to find any instance in which the bias of the prosecutor touched the trial itself. See People v. McKay, 191 Colo. 381, 384, 553 P.2d 380, 382 (1976) (en banc). The State's evidence showed that defendant's vehicle was seen in the area of the crime at the time in question. That night, defendant left a note for his wife in which he admitted the killing, and recognized the possible consequences of his act. Early the next morning, the defendant flagged down a police cruiser, and told the police officer that he had strangled a girl, and he didn't know why. Later, he gave the police detailed directions to where the body could be found. These admissions were introduced without objection or contradiction. ¹ Defendant's directions led the police to the nude body of the victim, which was found with abrasions on the neck and breasts, and partially covered by a wooden box. Uncontradicted expert medical testimony attributed death to strangulation, both manual and by ligature.

The sole issue controverted by the defendant was mental capacity. On this issue, the state's attorney presented the same expert witnesses that he had used in the first trial. The defendant makes no specific claim of prosecutorial overreaching at the trial, and the record discloses none. It is uncontradicted that none of the jurors were ever exposed to the state's attorney's campaign advertisement. The transcript reveals an uneventful trial.

In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court held that, where a reviewing court can declare beyond a reasonable doubt that a prosecutor's improper comments did not affect the jury, an error of constitutional dimension will be held harmless. Id. at 23-26, 87 S.Ct. at 827. The defendant in this case makes no constitutional claim on the bias issue, but a rule that overcomes constitutional error must, a fortiori, render nonconstitutional error harmless. Therefore, in light of the overwhelming evidence of guilt, we find beyond a reasonable doubt that...