State v. Reed

• Decision Date: 01 April 1969
• Docket Number: No. 1004,1004
• Parties: STATE of Vermont v. George Leslie REED.
• Court: Vermont Supreme Court

Page 227

253 A.2d 227

127 Vt. 532

STATE of Vermont v. George Leslie REED.

No. 1004.

Supreme Court of Vermont.

April 1, 1969.

Robert E. West, State's Atty., for the State.

O'Neill, Delany & Valente, Rutland, for defendant.

Before HOLDEN, C. J., SHANGRAW, BARNEY and KEYSER, JJ. and DALEY, C. supr. J.

HOLDEN, Chief Justice.

The respondent George Leslie Reed was tried and found guilty of the offense of grand larceny. The prosecution was by an indictment which charged him with stealing fifteen tons of flour from the Delaware and Hudson Railroad at Fair Haven, Vermont on April 22, 1967. The respondent appeals from the conviction. He claims error in the denial of his motions for a mistrial and for a directed verdict of acquittal. Error is also assigned to the trial court's instructions to the jury.

Two months before the alleged offense, on February 27, a Delaware and Hudson freight train was derailed at Fair Haven. The accident caused damage to three cars which were transporting some ninety tons of flour. Two of the cars, which were referred to in the evidence as cars 1 and 2, were extensively damaged and about half of their cargo was strewn on the ground at the site of the derailment. The third car, the Lehigh Valley, sustained only a small gash in the outer body of the car. Its inner shell was unharmed and its contents intact.

On April 20, 1967 the cars were uprighted and restroed to the rails by means of cranes. They were spotted on a siding near the Fair Haven depot. An officer of the railroad testified that his employer was not particularly concerned about the exposed contents of the seriously damaged cars. However, the Lehigh Valley car was inspected and resealed to protect the load for shipment to the consignee or resale.

While at work at his tavern in Hampton, New York on Saturday morning, April 22, the respondent learned that flour was being removed from the railroad yard in Fair Haven. He testified he saw various cars and trucks going by his place of business transporting quantities of flour.

The respondent drove to the railroad yard shortly after noon in his pick-up truck with Richard Stark. The respondent testified that all three freight cars were open. A number of people were removing flour. The respondent, Richard Stark and George Taren, with the assistance of some others at the scene, loaded the truck with bags of flour and stored it at his father's place in Hampton. He returned to Fair Haven with the same truck and procured a second load.

After this trip he borrowed his father's ten ton van and returned to Fair Haven. He loaded this truck from the third, or Lehigh Valley freight car, and transported the contents back to Hampton.

The elder Reed testified he was a surplus food distributor for Washington County in New York State. Through his efforts some three hundred 100 pound bags of flour were sold to the Patrick Tobacco Vending Company of Glens Falls, New York. The respondent received Partrick's check for $1,585.50 in payment. From the proceeds the respondent and Stark each received about $500. They paid $300 to Reed, Senior for the use of the van, $200 to George Taren and a few dollars to one of the helpers who assisted in loading the flour.

There was no security guard or representative of the Delaware and Hudson Railroad on duty at the Fair Haven yard on April 22, 1967. The railroad did not give permission for the removal of any of the cargo from the freight cars.

Such is the sum and substance of the State's evidence. The taking of the property, to the extent alleged in the indictment, was readily admitted by the respondent during the police investigation, as well as at the trial. The defense was based on the proposition that the taking was without any felonious intent on his part and that the property was removed under the mistaken belief that it had been abandoned by the railroad.

Evidence of the participation of Richard Stark and George Taren in the Alleged offense developed early in the presentation of the State's case. Later, during the course of the trial, it appeared that the prosecution had caused subpoenas to issue summoning Stark and Taren. The prospective witnesses engaged a Vermont attorney, who appeared with them at the time specified for their attendance. He informed the court and counsel in chambers that he objected to their being summoned and had advised them to claim privilege against self-incrimination.

The state's attorney then stated 'for the record-that we will grant them (Stark and Taren) immunity from prosecution for any possible offense which they may possibly have committed-' concerning the respondent's activities on this particular occasion. On inquiry from the court, counsel for the respondent indicated the defense had no objection to these witnesses testifying, nor to their being offered immunity.

On the following morning, the attorney for Stark and Taren moved to quash the subpoenas, asserting possible prejudice to the State or the respondent. When the trial judge asked the respondent's counsel if he had anything to add, he replied: 'No, the respondent has no comment either way with respect to the motion.' The motion was denied with the statement '- (t)he court rules that if they are called they can take the Fifth Amendment at the time they feel they should.'

Late in the afternoon of the same day, in the presence of the jury, the prosecutor called the witness Taren. After stating his name and occupation, he was asked if he recalled hearing of flour being taken from the railroad cars in Fair Haven at the time in question. He was interrupted by his attorney's request for a conference at the bench. This was denied, but the witness was temporarily excused from the stand to consult with his attorney before answering the question. When he resumed the stand, the witness stated he had the question in mind '-and I refuse to answer on the grounds it might incriminate me.'

In the discourse which followed, out of the presence of the jury, the respondent took the position that the questions asked by the State, at least up to that point, would not tend to incriminate Taren and the privilege was not available to him. Without resolving the matter the court recessed for the day.

The next morning the attorney for the witnesses announced on the record that the witnesses would testify to all matters about their involvement in the case, on the condition that the State grant them immunity. The State's attorney responded by stating he granted both witnesses immunity from prosecution under the laws of Vermont.

At this point, the respondent presented a motion for a mistrial. The motion contended that the evidence implicated Taren in all activities of the respondent on the date of the alleged offense. The defense urged that the state's attorney's action, in calling him as a witness, when he knew he would claim his privilege, created a prejudicial atmosphere from which the jury might well infer that the respondent was guilty.

The motion was denied. The trial resumed with unrestricted examination of the witness Taren by both the prosecution and the defense. Richard Stark was later called by the State and examined at length by counsel for the prosecution and defense on the same condition.

The first concern of this appeal is whether the course of the conduct of this trial constituted prejudicial error. The area of this question has troubled courts in other jurisdictions in differing patterns of presentation.

There is no general rule to provide an easy answer to cover all situations. Error must be tested by the circumstances of each case. Namet v. United States, 393 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278, 283; United States v. Maloney, 2 Cir., 262 F.2d 535, 537.

The question is essentially evidentiary, arising from an impermissible inference. Evidence of guilt should not be created against a respondent because an accomplice elects to exercise a constitutional right personal to himself. United States v. Maloney, supra; Billeci v. United States, 87 U.S.App.D.C. 274, 184 F.2d 394, 24 A.L.R.2d 881, 895; People v. Pollock, 21 N.Y.2d 206, 287 N.Y.S.2d 49, 234 N.E.2d 223, 226; De Gesualdo v. People of Colorado (1961) 147 Colo. 426, 364 P.2d 374, 86 A.L.R.2d 1435, 1440; 8 Wigmore, Evidence § 2272(b) McN.Rev.Ed.

In United States v. Maloney, supra, Judge Learned Hand probed the roots of the problem in a federal prosecution where corroboration of the unprivileged testimony of an accomplice was essential to conviction. The prosecution conceded that it anticipated two other accomplices, if called, would refuse to answer. In summation, the prosecution inferred that had a third accomplice answered, his response would have been favorable to the government. The conviction was reversed for want of adequate cautionary instructions by the trial judge. The court recognized, however, that the barrier should be removed to meet any advantage sought by the accused from the prosecution's failure to call an accomplice.

The reasoning of the majority opinion is clear.-

'When a witness claims his privilege, a natural, indeed an almost inevitable, inference arises as to what would have been his answer if he had not refused. If the prosecution knows when it puts the question that he will claim the privilege, it is charged with the probable effect of his refusal upon the jury's mind * * * such refusals have been held not to be a permissible basis for inferring what would have been the answer, although logically they are very persuasive.' United States v. Maloney, supra, 262 F.2d at 537.

Another consideration permeates the issue. The persuasive effect which may stem from the refusal of an accomplice to testify is not subject to cross-examination. See Namet v. United States, supra, 393 U. S. 179, 83 S.Ct. 1151, 10 L.Ed.2d at 284.

Neither of these factors is present in the case at bar. Both Stark and Taren testified. When initial silence was broken, the jury was no longer tempted to...