State v. Morrill

• Decision Date: 01 April 1969
• Docket Number: No. 311,311
• Citation: 127 Vt. 506,253 A.2d 142
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Richard L. MORRILL.

Page 142

253 A.2d 142

127 Vt. 506

STATE of Vermont v. Richard L. MORRILL.

No. 311.

Supreme Court of Vermont.

April 1, 1969.

Patrick J. Leahy, State's Atty., and Charles R. Tetzlaff, Asst. State's Atty., for the State.

Paul, Frank & Collins, Burlington, for defendant.

Before HOLDEN, C. J., SHANGRAW, BARNEY and KEYSER, JJ., and LARROW, Superior Judge.

KEYSER, Justice.

On November 2, 1967, Richard L. Morrill was convicted by a jury in Chittenden County Court of the crime of statutory rape and given a lengthy prison term. His appeal to this court presents three questions: (1) Whether the deliberation by the jury of only one-half hour means that they must have ignored the court's charge and based their verdict on mistake, passion, or prejudice; (2) Whether the charge of the court to the jury invaded the province of the jury and thus denied the appellant his constitutional right to trial by jury; and (3) Whether the court excluded admissible testimony which would have convinced the jury to find the defendant not guilty.

The first assignment of error springs from the denial by the trial court of the respondent's motion to set aside the verdict. This invoked a discretionary ruling by the court below. To be error, an abuse or withholding by the court of its discretion must be shown. And this court is bound to indulge every reasonable presumption in favor of the ruling below. John v. Fernandez, 124 Vt. 346, 348, 205 A.2d 552.

As shown by the record, the jury reached their verdict one-half hour after receiving the case from the court. The respondent argues that this fact coupled with the inflammatory nature of the case indicates that a verdict was reached before the jurors had time for reasoned deliberation.

This precise question was raised by the respondent in State v. Lumbra, 122 Vt. 467, 177 A.2d 356, 91 A.L.R.2d 1235. In that case the jury deliberated approximately eight minutes. Although that case was a prosecution for driving a motor vehicle while under the influence of intoxicating liquor and the case at bar involves a much more serious crime, the law is equally applicable here.

Chief Justice Hulburd said in the Lumbra case at pages 469-470, 177 A.2d at page 358: 'The law does not attempt to prescribe the length of time which a jury should take to arrive at a verdict. Indeed, it has been held that a jury may render a verdict without retiring. (Case cited) Of course, the trial court may-and doubtless should-cause the jury to reconsider its verdict if it considers that their decision is so hasty as to indicate, in the circumstances, either a flippant disregard or a perfunctory performance of their duties. (Case cited) Specifically, it has been held that a period of deliberation of eight minutes was not unreasonable. (Citing cases and 89 C.J.S.Trial p. 93).'

Following the report of the Lumbra case in 91 A.L.R.2d there is an annotation on this question at pages 1238-1251. This annotation (1963) deals with the effect on a verdict in a criminal case of the haste or shortness of time taken by the jury in reaching the verdict. It is there stated that 'no criminal case has been found in which haste or shortness of time taken by a jury in arriving at a verdict was held to amount to reversible error.' Numerous cases are there cited from nineteen jurisdictions showing that the length of time taken by the jury in returning a verdict ranged from four minutes (United States v. Young, 1962, CA 6 Tenn., 301 F.2d 298, possession of an illicit still) to thirty minutes (Smith v. State, 40 Tex.Cr. 391, 50 S.W. 938, a murder case). The annotation points out the views taken by the various courts in deciding that no prejudicial error was found.

Generally, it can be said that the strength of the evidence is one of the controlling factors on the duration of the deliberation of the jury. See State v. Lumbra, supra, 122 Vt. at p. 470, 177 A.2d 356. There is no law which requires a jury to deliberate any longer than may be necessary to agree upon a verdict. And jurors undoubtedly begin their deliberation process during the progress of the trial. Furthermore, the historical inviolability and independence of the jury tend to make inquiry into the manner of reaching a verdict improper. State v. Richmond, 321 Mo. 662, 12 S.W.2d 34.

Our review of the transcript in the instant case discloses that the evidence of respondent's guilt was clear, concise and overwhelming. The testimony given by the witnesses that the age of the prosecutrix was eleven years is uncontradicted. The girl, Elizabeth, and a younger sister and brother were guests in the respondent's trailer home in Shelburne from about 3 A. M. on May 14. She was put in the same bed with the respondent and a Madelyn Guerrard who had lived with the respondent about five years. At first she was placed on the front side of the bed but shortly afterwards she was put in the middle by Miss Guerrard on the instruction of the respondent. The testimony of the prosecutrix concerning the act committed by the respondent at that time is corroborated by the testimony of Miss Guerrard, she being present when the incident in question occurred. There is also medical testimony that a physical examination of the girl on May 17th disclosed three lacerations in the girl's genital area, the appearance of which was 'consistent with the little girl's story that she suffered them about three days before' the doctor saw her.

This is only a capsule summary of the evidence introduced which was before the jury for consideration. A more detailed and lengthier recitation of the facts presented by the evidence does not appear to be either appropriate or necessary. Suffice it to say that an examination of the record makes it quite apparent that the jury must have felt that the evidence was so convincing and persuasive that it was able to reach a unanimous verdict within a comparatively short time.

The record indicates that the court, as it must, did exercise and not withhold its discretion in passing on the motion. Travers & Thomas & v. Rupe, 116 Vt. 314, 315, 75 A.2d 692. The respondent has failed to demonstrate that the discretion of the court was exercised on grounds or for reasons clearly untenable, or to an extent clearly unreasonable. This is the test of abuse of discretion. John v. Fernandez, supra, 124 Vt. at p. 348, 205 A.2d 552. We find nothing in the record tending to indicate that the court abused its discretion in passing on this ground of the motion. Without this showing, this court will not intervene. State v. Lumbra, supra, 122 Vt. at p. 470, 177 A.2d 356; State v. Goyet, 120 Vt. 12, 19, 132 A.2d 623.

The second assignment of error is that the court's charge to the jury invaded the province of the jury so as to deny the respondent's constitutional right to trial by jury.

The respondent concedes, as the record shows, that he took no exception to the content of the court's charge to the jury. Further, this claimed error was not a ground of respondent's motion to set aside the verdict. Thus, the trial court had no fair opportunity to pass judgment upon this point and to add to, or modify its charge. State v. Quesnel, 124 Vt. 491, 495, 207 A.2d 155.

Judge Learned Hand, in Scott v. Central Commercial Company, 2 Cir., 272 F.2d 781 (1959), cert. denied 363 U.S. 806, 80 S.Ct. 1241, 4 L.Ed.2d 1149, refused to consider the trial judge's charge to the jury to which there was no objection at trial stating that the power of appellate courts to consider issues not raised at trial is sparingly exercised. He did say, however, at page 782 that 'It is only an egregious kind of error (that) we may consider of our own motion.'

In order to reach the question attempted to be raised we must first decide whether this is one of those rare and extraordinary cases where a glaring error occurred during the trial and was so grave and serious that it strikes at the very heart of the respondent's constitutional rights. It is only in this context that we will examine the case and determine whether the record indicates it is of this character since the question is not otherwise properly before this court.

That segment of the charge with which the respondent complains follows:

'The issues are few, and they are simple. The girl's age and did the Respondent do what she says he did. We think we can charge you as a matter of law that if you are satisfied beyond a reasonable doubt that the Respondent did what the State claims he did, then of course he is guilty of statutory rape.'

Instructions to the jury may not be isolated into small segments and considered piecemeal but must be measured by their full context. State v. Ciocca, 125 Vt. 64, 74, 209 A.2d 507; State v. Coburn, 122 Vt. 102, 110, 165 A.2d 349; State v. Orlandi, 106 Vt. 165, 176, 170 A. 908.

Before the charge...