State v. Pray

• Decision Date: 07 October 1975
• Docket Number: Nos. 229-75,260-75,s. 229-75
• Citation: 133 Vt. 537,346 A.2d 227
• Parties: , 78 A.L.R.3d 775 STATE of Vermont v. Gary PRAY. STATE of Vermont v. Godfrey H. ROESSEL, Jr.
• Court: Vermont Supreme Court

Page 227

346 A.2d 227

133 Vt. 537, 78 A.L.R.3d 775

STATE of Vermont v. Gary PRAY.

STATE of Vermont v. Godfrey H. ROESSEL, Jr.

Nos. 229-75, 260-75.

Supreme Court of Vermont.

Oct. 7, 1975.

M. Jerome Diamond, Atty. Gen., Raymond L. Betts, Jr., Asst. Atty. Gen., Montpelier, Raymond G. Bolton, Bennington County State's Atty., Bennington, Greg McNaughton, Washington County Deputy State's Atty., Montpelier, for plaintiff.

Robert Edward West, Defender Gen., Charles S. Martin, App. Defender, Montpelier, David S. Putter, Public Defender, Bennington, for defendant.

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

BILLINGS, Justice.

These cases, heard jointly on appeal, challenge the constitutional validity of the bail statue, 13 V.S.A. § 7554, as it relates to non-capital cases prior to trial, when used to deny bail on the basis that release of a prisoner would constitute a danger to the public.

Gary Pray was indicted in the Bennington Superior Court for first-degree murder, 13 V.S.A. § 2301, on May 6, 1971. On trial conviction resulted, which was affirmed after mandatory appeal here. State v. Pray, 130 Vt. 613, 298 A.2d 859 (1972). Later, a post-conviction proceeding brought before this Court resulted in reversal and a remand for new trial. In re Pray, 133 Vt. 253, 336 A.2d 174 (1975). On April 7, 1975, a judicial officer refused to admit the defendant to bail and made a finding that his release would constitute a danger to the public. 13 V.S.A. § 7554(a). Pursuant to 13 V.S.A. § 7554(d), the defendant sought a review before the presiding judge of the Addison Superior Court, venue of the case having been transferred there. The motion for review was dismissed and the order was affirmed by this Court on July 8, 1975, with leave granted to the defendant to apply to the proper judicial officer for review. On reapplication, the judicial officer originally ordering the denial of bail on review refused to change the order denying bail and, pursuant to 13 V.S.A. § 7556(b), the defendant now appeals.

On August 19, 1975, Godfrey H. Roessel, Jr. was arraigned on a charge of rape, 13 V.S.A. § 3201, in the District Court of Vermont, Unit No. 5, Washington Circuit. On a plea of not guilty, bail was fixed at ten thousand dollars, and the defendant was then committed for evaluation to the Vermont State Hospital. 13 V.S.A. § 4814. As a result of a habeas corpus petition, the Washington Superior Court, on September 8, 1975, ordered that the defendant was entitled to a bail hearing; and on September 16, the Washington District Court Judge refused to admit the defendant to bail, finding that his release would constitute a danger to the public, 13 V.S.A. § 7554(a). The defendant appeals his denial of bail here, invoking 13 V.S.A. § 7556(b).

13 V.S.A. § 7554 was enacted by the Legislature in 1968. Since that time this Court has had occasion to consider various elements of the statute relating to specific factual situations. State v. Lapham, 133 Vt. 431, 340 A.2d 81 (1975); State v. Churchill, 133 Vt. 338, 341 A.2d 22 (1975); State v. McGinnis, 133 Vt. 20, 328 A.2d 400 (1974); State v. Roessell, 132 Vt. 634, 328 A.2d 118 (1974); State v. Gregory, 132 Vt. 550, 325 A.2d 359 (1974); State v. Webb, 132 Vt. 418, 320 A.2d 626 (1974). However, the issue of the constitutionality of pretrial preventive detention raised by the present appeals is one of first impression.

Chapter II, section 40 of the Vermont Constitution mandates that:

All prisoners, unless in execution, or committed for capital offences, when the proof is evident or presumption great, shall be bailable by sufficient sureties nor shall excessive bail be exacted for bailable offences.

In the cases at bar, neither defendant is in execution, since they both await trial, and neither defendant is charged with a capital offense. State v. Lapham, supra, 133 Vt. at 431, 340 A.2d 81. A capital offense is one in which the death penalty may be inflicted, and Vermont has abolished the death penalty except in certain cases not here applicable. 13 V.S.A. § 2303. See also Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972); State v. Johnson, 61 N.J. 351, 294 A.2d 245 (1972).

13 V.S.A. § 7554 provides for a release in non-capital cases prior to trial on personal recognizance or on execution of an unsecured appearance bond, unless the appropriate judicial officer determines in the exercise of his discretion that such a release will not reasonably assure the appearance of the person as required or that the release of the person will constitute a danger to the public. When the judicial officer determines that a release will not reasonably assure the appearance of the person at trial or that the release will constitute a danger to the public, statutorily enumerated conditions of release, singly or in combination, must be imposed to reasonably assure appearance. Section 7554(a) compels the judicial officer to impose conditions to assure defendant's appearance, but is silent on whether or not conditions may be imposed, must be imposed, or bail denied altogether, in order to protect the public from a defendant's found threat to the community. The prefatory language of § 7554(b) does suggest that there is also a positive duty on the part of the judicial officer to impose conditions of release which will alleviate the danger to the public and, read in any reasonable manner in conjunction with § 7554(a), would not allow the judicial officer to deny bail with conditions in the instance of a finding of danger to the public.

A legislative enactment is entitled to the presumption of constitutionality unless such an interpretation is plainly foreclosed by the language itself, State v. Webb, supra; In re Delinquency Proceeding, 129 Vt. 185, 188-89, 274 A.2d 506 (1970). And, in order to render a statute unconstitutional, the one challenging bears the burden of showing its invalidity. State v. Webb, supra; State v. Auclair, 110 Vt. 147, 156, 2 A.2d 107 (1939). A prisoner in this State, unless in execution or for a capital offense, when the proof is evident or presumption great, is bailable as a matter of right, and the Legislature cannot infringe upon this right by creating a restriction to detain prisoners dangerous to themselves or the public. State v. Toomey, 126 Vt. 123, 124, 223 A.2d 473 (1966); In re Dexter, 93 Vt. 304, 314, 107 A. 134 (1919). Thus, a reading of § 7554 that would allow denial of bail upon a finding of danger to the public is unconstitutional. We do not construe the statute in such an unconstitutional manner. In re Delinquency Proceeding, supra. If one desires to detain such persons, authorization must be found elsewhere in the statutes. There is nothing in Vermont Constitution, chapter II, section 40, that provides for denial of bail because of a defendant's dangerous...