State v. Lapham

• Decision Date: 07 June 1977
• Docket Number: No. 132-76,132-76
• Citation: 377 A.2d 249,135 Vt. 393
• Parties: STATE of Vermont v. Robert E. LAPHAM.
• Court: Vermont Supreme Court

Page 249

377 A.2d 249

135 Vt. 393

STATE of Vermont v. Robert E. LAPHAM.

No. 132-76.

Supreme Court of Vermont.

June 7, 1977.

M. Jerome Diamond, Atty. Gen. and William T. Keefe, Asst. Atty. Gen., Montpelier, and John S. Liccardi, Rutland County State's Atty., Rutland, for plaintiff.

Robert E. Broderick, Theodore A. Parisi, Jr., and John D. Burke, Castleton, for defendant.

Before BARNEY, C. J., LARROW, BILLINGS and HILL, JJ., and SHANGRAW, C. J. (Ret.), specially assigned.

BILLINGS, Justice.

This is an appeal from a judgment of guilty entered in the Rutland Superior Court after a jury trial for first-degree murder. 13 V.S.A. § 2301; V.R.A.P. 3(b). On March 30, 1975, the Vermont State Police received telephone calls reporting a possible murder at a Mendon residence; officers were dispatched to the scene. When they attempted to enter the house, the defendant opened the door and they were able to see the victim. Conversation ensued between the defendant and the officers.

While being transported from the scene, the defendant showed physical signs of illness and was taken to Rutland City Hospital where he suffered a cardiac arrest and was treated for shock and coma resulting from a drug overdose.

An information charging the defendant with first-degree murder was filed in the District Court of Vermont, Unit No. 1, Rutland Circuit on March 31, 1975. He was arraigned at the hospital on April 2nd before a district judge, at which time he entered a plea of innocent. The state's attorney requested the court to "make an entry of not guilty by reason of insanity" and to order him committed to the Vermont State Hospital at Waterbury for observation and a report on his competency and sanity; the order was granted.

On June 12, 1975, an information was filed in the Rutland Superior Court charging the defendant with first-degree murder. The district court information was withdrawn on June 16, 1975. A grand jury was subsequently convened and a true bill was returned on June 30, 1975. On July 3, 1975, upon request of the state's attorney, the District Court of Vermont, Unit No. 1, Rutland Circuit ordered an inquest on the matter which was held later that month. Subsequently, various motions were made relating to jurisdiction and evidence, and the matter came to trial. Denial of those motions and motions relating to jury instructions is the subject of this appeal.

The defendant's first claim of error is that a district court lacks subject matter jurisdiction over a first-degree murder charge; hence, the arraignment, plea, commitment and inquest before a district judge were void and of no effect so that any evidence derived from them was inadmissible and should have been suppressed from use at trial. He argues that first-degree murder is a felony for which the punishment is life imprisonment (13 V.S.A. § 2303) and that the superior court has exclusive jurisdiction of felonies for which the punishment is life imprisonment (4 V.S.A. § 114) because the district court's jurisdiction is limited to felonies for which the maximum punishment is imprisonment for less than life. 4 V.S.A. § 439.

Vermont Rule of Criminal Procedure 4 sets forth the procedures for application to a "judicial officer" for a summons or arrest warrant upon indictment or information. (V.R.Cr.P. 54(c)(4) defines a judicial officer.) The overall intent of this rule and companion rules is that any available judicial officer is capable of testing the application of a prosecutor and receiving a plea, premised upon the "neutral and detached magistrate" concept elaborated in Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

The statutory language setting forth the district court's jurisdiction does not support the defendant's contention concerning arraignment and appearance. The limitations are with respect to "try, render judgment and pass sentence". 4 V.S.A. § 439. Nor did those actions run afoul of 13 V.S.A. § 7001 which provides that, "A person shall not be punished for an offense unless he is convicted thereof in a court having jurisdiction of the cause and the person." (emphasis added). Likewise, no support for this contention is found in 13 V.S.A. § 5131 which permits inquests or 13 V.S.A. § 4814 which permits psychiatric examination.

The defendant-appellant has not shown prejudice arising from these procedures held before a district judge nor has he shown any other basis for reversible error.

The defendant's second claim of error is that at the second arraignment, held on April 2, 1975, at the Rutland City Hospital, a plea of not guilty by reason of insanity was entered at the request of the state's attorney and against the defendant's wishes. He claims that the plea led to his illegal commitment from which evidence was derived which was subsequently introduced at trial to his detriment.

It is clear that the plea of not guilty by reason of insanity is abolished. V.R.Cr.P. 11(a), 12(a). Insanity as a defense is usually raised in the omnibus hearing. V.R.Cr.P. 12(f)(2)(H); see V.R.Cr.P. 12.1.

The transcript of the arraignment shows that the state's attorney requested the judge to "make an entry of not guilty by reason of insanity." It is unclear whether the judge accepted and entered that plea. Standing alone, acceptance of such a plea is error, but not reversible error. The crucial issue is the results which flow from a disposition based on that plea. This is the defendant's third claim of error.

The defendant objects to the State gleaning any information from the psychiatric review during commitment, terming it improper discovery. V.R.Cr.P. 16.1. The State could and did request examination to determine competency to stand trial. 13 V.S.A. § 4814. Its request to concurrently examine the defendant to determine insanity at the time of the alleged offense was improper. However, the record shows that arrangements were made to have the defendant first examined at Rutland City Hospital by a psychiatrist of his own choosing, and his counsel then waived objection to the subsequent Waterbury psychiatric review in this exchange with the district judge.

Judge: And after he has finished his examination, then you have no objection to the granting of the state's motion to have him examined at Waterbury?

Counsel: We do not, your honor.

Of course, this agreement did not waive any protection granted by 13 V.S.A. § 4816(c) which limits the use of incriminating statements made during the court-ordered psychiatric review.

The fourth claim of error is that the statutory inquest procedures were abused when the State held an inquest subsequent to the return of a true bill. It is asserted that original constitutional rights to confrontation and cross-examination were violated because neither the accused nor his counsel were allowed to attend the inquest.

It is the position of the appellant that he or his counsel had a right to be present and to cross-examine witnesses at all stages where their absence might frustrate the fairness of a proceeding, stages after which an investigation has "focused" on a particular defendant. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The procedures for inquests in criminal matters are set forth at 13 V.S.A. § 5131 et seq. They are investigations into criminal matters to determine the existence of probable cause, and thus the statutes are strictly construed. State v. Alexander, 130 Vt. 54, 60, 286 A.2d 262 (1971). An inquest is at most a discovery procedure. Id. at 61.

The Rules of Criminal Procedure were effective October 1, 1973. V.R.Cr.P. 59. V.R.Cr.P. 15, among other things, provides that after the filing of an information or indictment, the State may take depositions of witnesses, either as a matter of right within thirty days of arraignment or by leave of court at a later day. V.R.Cr.P. 15(a). The rule outlines the right of the defendant to be present and to conduct cross-examination. V.R.Cr.P. 15(b). These rules were promulgated by force of legislation, providing that after the effective date, "all laws in conflict therewith shall be of no further force or effect." See Reporter's Notes, V.R.Cr.P. 1. The requirements of the rules have statutory force, and insofar as the use of inquest material obtained after indictment or information is in conflict with them, it is repealed. Any other result would be completely inconsistent with the policy of reciprocal disclosure outlined in the rules. V.R.Cr.P. 16.1, 16.2. Compare with Reporter's Notes, V.R.Cr.P. 16. In view of our holding that it is error to use materials obtained by inquest ordered after a true bill is returned or an information filed against the defendant, we do not reach the constitutional issues.

While not controlling in the case at bar, the action of the State below in producing for the defendant the minutes of the inquest is certainly an implicit recognition of this principle. Although contrary to the statutory provision of secrecy, 13 V.S.A. § 5134, it is in accord with the requirement of the rule. V.R.Cr.P. 16(a)(2)(B).

The fifth claim of error is that the trial judge improperly denied a motion to dismiss for lack of a prima facie case because he did not review the transcript of the grand jury proceeding to test the assertions of the defendant that the minutes were altered, that the State could not account for their custody, and that they were not authenticated.

The State elected to rely upon the grand jury minutes as sworn testimony to meet its burden of prima facie evidence in response to the motion to dismiss. The original copy of the transcript of the grand jury minutes was produced at the court hearing by the assistant attorney general. He represented to the court that he had received them by mail from the stenographic reporter and, finding no index, merely had written five entries on the caption page indicating the page at...