State v. Rebideau

• Citation: 132 Vt. 445,321 A.2d 58
• Decision Date: 04 June 1974
• Docket Number: No. 141-73,141-73
• Parties: STATE of Vermont v. Ray L. REBIDEAU.
• Court: United States State Supreme Court of Vermont

Page 58

321 A.2d 58

132 Vt. 445

STATE of Vermont v. Ray L. REBIDEAU.

No. 141-73.

Supreme Court of Vermont.

June 4, 1974.

Kimberly B. Cheney, Atty. Gen., William T. Keefe, Asst. Atty. Gen., and Paul F. Hudson, State's Atty., for the State.

John J. Welch, Jr., Rutland, for defendant.

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

KEYSER, Justice.

The defendant was indicted by the grand jury in Windsor County for murder in the first degree of Raymond Lestage to which he pleaded not guilty. On a motion for change of venue, his case was transferred to the Addison County Court. A trial by jury, at which defendant did not testify, resulted in a verdict and judgment of guilty. The case arrives here by way of mandatory statutory appeal.

One Frank J. Berard, Jr. was convicted in Windsor County Court in a trial by jury of the offense with which the defendant here is charged. Our determination of the appeal in that case is to be found in State v. Berard, 132 Vt. 138, 315 A.2d 501 (1974). As the state's evidence in that case is substantially similar to the evidence to be reviewed here, reference to the Berard case may be had for the general background facts of the incident out of which the present appeal arises.

Defendant's first claim of error arises out of the examination of a witness, Joseph Bartlett, by the State's Attorney, in the course of which the following dialogue took place:

State: Where you acquainted with Ray Rebideau also on that day?

Bartlett: Yeah, I think so.

Q: How did you know him?

Bartlett: I knew him from prison, and I knew him from living there.

Barlett, who had rented apartments to both the defendant and Berard, had found one of the murder weapons, a .22 H & R pistol, in a wood pile on his property two or three days after the homicide.

Bartlett's testimony indicating defendant's prior criminal record was not admissible for any purpose brought to our attention by the parties. Such evidence, by raising an inference of bad character or criminal tendencies in the defendant, may have the effect of so coloring the jurors' attitudes as to remove the presumption of innocence with which the defendant first comes clothed, and of placing his past character on trial, rather than his involvement in the act charged. However, the burden of establishing such prejudice as to warrant a mistrial is upon the defendant here. State v. Berard, supra.

The record presents no question of improper conduct on the part of the State in the line of inquiry which led to the inadmissible disclosure. Cf. State v. Jackson, 127 Vt. 237, 246 A.2d 829 (1968). The court found that the remark was inadvertently made and came as a surprise to the State. Defendant makes reference to a duty of the examining counsel to maintain effective control of his witness. However such a duty cannot arise where there has been no opportunity to exercise it. The sole question to be considered is whether the admitted testimony was, under the circumstances, so prejudicial as to deny the defendant a fair trial.

At the conclusion of Bartlett's testimony, defendant moved for mistrial. The jury was returned to the jury room while a discussion of the motion between the court and counsel ensued. Upon the jury's return, the court directed the jurors to disregard Mr. Bartlett's testimony that he had met the defendant in prison. These instructions were again made in the court's final charge to the jury. No other reference to the improper testimony was made by either of the parties. The present case is distinguishable from State v. Garceau, 122 Vt. 303, 170 A.2d 623 (1961), in which the trial court made no attempt to caution the jury at the time the objectionable testimony was entered, and from State v. Shuttle, 126 Vt. 379, 230 A.2d 794 (1967), in which testimony of defendant's prison record was twice disclosed on direct examination, and the State sought to take advantage of the testimony on summation.

In fact, we can find no fault on the part of counsel nor abuse of discretion on the part of the court in the introduction of this testimony or the subsequent attempts to cure. It is true, as we noted in the Garceau case, supra, 122 Vt. at 307, 170 A.2d at 625, that:

The harm, once done, is not necessarily erased nor the error corrected by a subsequent charge to the jury to disregard it. 'Indeed, it may well be that irreparable prejudice has been caused before the court can intervene, and thereafter any attempt * * * to remove it from the case is futile * * *.' (Citations omitted.)

However, the court's denial of mistrial was in effect a ruling that no such irreparable prejudice had occurred. That ruling will only be overturned if it is found to be in abuse of the trial court's discretion.

Prejudice is to be determined on the facts of each case, State v. Jackson, supra, and to be considered within the context of the entire proceedings. Donnelly v. DeChristoforo, -- U.S. --, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). One factor to be considered is whether there exists 'overwhelming evidence' of guilt independent of the erroneous testimony in order to negate 'a reasonable possibility that the evidence complained of might have contributed to the conviction.' Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967); approved in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

The United States Supreme Court had occasion to deal with some other factors bearing on prejudice in a recent case involving improper prosecutorial remarks in closing argument. Donnelly v. DeChristoforo, supra. The Court there noted that the remarks made were subject to conflicting inferences, and did not involve the introduction of specific misleading information; further, that they provided but one moment in what was an extended trial, followed by specific disapproving instructions from the trial court. The Court thereupon concluded that the remarks, in the context of the entire trial, were not sufficiently prejudicial to violate defendant's due process rights.

Here, as in the Berard case, supra, extremely strong evidence of guilt had been introduced at the time of the motion for mistrial including the testimony of the key prosecution witness, Linda Badore. Bartlett's statement, while clearly giving rise to the inference that the defendant had at one time been in prison, gave no indication that he was there for any particular crime or even that he was there in an incarcerated status. Without suggesting the seriousness of any prior crime, or the multiple incarcerations of a hardened criminal, as in Garceau, supra, Bartlett's remark could have only a minimal tendency to convey to the jurors that sense of a 'vicious criminal record' which provides the reason for the exclusionary rule. Garceau, supra 122 Vt. at 306, 170 A.2d 623. These circumstances, along with the voluminous nature of the testimony taken in the course of the trial, lead us inexorably to the conclusion that Bartlett's chance remark could have had no lasting and significant impression on the jurors' minds. We therefore find no error in the denial of mistrial in the court below.

Defendant also urges the prejudicial effect of the introduction of color photographs of the deceased. The argument with respect to the photographs is simply put; the relevance of such photographs must outweigh their potentially inflammatory effect if they are to be admitted into evidence. State v. Oakes, 129 Vt. 241, 276 A.2d 18 (1971). This determination is a matter for the discretion of the trial court. Id. Color photographs require no more stringent standard of admission than is the case with black and white photographs. Killary v. Chamber of Commerce, 123 Vt. 256, 186 A.2d 170 (1962).

The State's position is that the photographs were necessary to explain the testimony of Dr. Ronald Wright, a Regional Medical Examiner for the State, who performed the autopsy on the deceased. His testimony was introduced to corroborate the testimony of Linda Badore that the defendant shot the victim, Lestage, in the back with a shotgun as the first in a series of shots. We are satisfied from an examination of the record and the disputed exhibits that their admission was not improper as a matter of law. We therefore find no error in the lower court's exercise of discretion.

A claim of prejudicial evidence arises out of the fact that defendant's physical appearance changed somewhat between the night of the homicide and the time of trial. The State sought to establish defendant's whereabouts prior to the shooting in corroboration of the testimony of Mrs. Badore, by asking numerous witnesses to describe the man they saw in the company of Frank Berard and Mrs. Badore at various drinking places in Burlington on the night of the shooting. Defendant was variously described as of medium build with long, shoulder-length hair with a very thin mustache coming across the lip and down, or with 'long black hair, a heavy dark mustache, black hair, and dark clothes.' He appeared at trial in a suit, clean-shaven, and with close-cropped hair.

Defendant contends here as he did at trial that the proper means of identification was to ask each witness to point out in the courtroom the person whom they saw accompanying Frank Berard on the night in question. The State contends that, in light of the fact that defendant was unknown to the various witnesses prior to the night in question, and because of his changed appearance at trial, courtroom identification would have been difficult. Defendant offered to stipulate to his presence on the night in the company of Berard and Mrs. Badore, charging that repeated references to his long hair and mustache could have a prejudicial effect on the jury. The State declined to so stipulate.

The parties agree that the proper means of identification is a matter for the trial court's discretion. Defendant's position is dependent on the prejudicial effect of the identification,...