State v. Rickert

• Decision Date: 01 December 1964
• Docket Number: No. 313,313
• Citation: 124 Vt. 380,205 A.2d 547
• Parties: STATE of Vermont v. Wilbur J. RICKERT, Jr.
• Court: Vermont Supreme Court

Page 547

205 A.2d 547

124 Vt. 380

STATE of Vermont v. Wilbur J. RICKERT, Jr.

No. 313.

Supreme Court of Vermont.

Dec. 1, 1964.

John J. Boylan, Jr., State's Atty., Burlington, Charles E. Gibson, Jr., Atty. Gen., St. Johnsbury, Lewis E. Springer, Jr., Woodstock, on the brief, for the State.

John B. Harrington and Richard Schmidt, Burlington, for defendant.

Before HOLDEN, C. J., SHANGRAW, BARNEY and SMITH, JJ., and BROOKS, Superior Judge.

SMITH, Justice.

The respondent was convicted by a jury on three felony counts of obtaining property by false token in violation of 13 V.S.A. § 2002 during the September Term of Chittenden County Court, 1963. He appeals here from the judgment of conviction.

The record before us discloses that the respondent was the defendant in two criminal actions pending before the September Term, 1963, of the Chittenden County Court. The older case of the two concluded with a jury disagreement and mistrial on December 10, 1963. The instant case was then set for trial on December 11, the following day.

The appeal here is based upon the lower court's denial of various motions made in behalf of the respondent by both his personal counsel, who had appeared for him in the former action which had resulted in the mistrial, as well as court-appointed counsel who had represented the respondent in the instant case since his arraignment on November 14, 1963. All of such motions were made on the date of trial, and outside the presence of the jury.

The first motion presented prior to trial by the respondent was one for a continuance to the next term. Respondent claimed below: (1) that he would be prejudiced by a trial from the same jury panel some of whose members had sat on the prior case which had resulted in the mistrial; (2) lack of time for counsel to sufficiently prepare respondent's defense because of the shortness of time between the two causes in which respondent was the defendant; (3) counsel wished additional time to investigate the possibilities on a defense of not guilty by reason of insanity; and (4) that the respondent would be prejudiced by the publicity he had received as a result of the previous trial.

However, in the 'Memorandum of Law' before us, which it is apparent respondent wishes us to treat as his brief, only three issues are presented here on the contention that the trial court abused its discretion in denying the motion for continuance. These are, that respondent lacked time to prepare his defense because of the short time intervening between the first and second trials; that respondent suffered the same lack of time due to misleading docketing of cases; that respondent was prejudiced by a jury drawn from the same array from which a jury had been drawn in his former trial.

Respondent's brief states that because of the alleged abuse of discretion on the part of the court below in the denial of his motion for continuance, he was denied a fair trial under the due process clause of the Fourteenth Amendment to the Federal Constitution.

The brief before us does not comply with Supreme Court Rule 8, Section 3, in that there appears no reference to record or transcript for support of the claims advanced. This is improper briefing and the points sought to be presented need not merit our attention. State v. Haskins, 120 Vt. 288, 293, 139 A.2d 827. However, because this is a criminal matter, and the respondent believes that a determination of the questions presented are of fundamental right, we will relax the rigor of our rule as to briefing and consider the questions apparently sought to be presented.

The granting or denial of a motion for continuance is within the discretion of the trial court. State v. Prouty, 94 Vt. 359, 361, 111 A. 559. The test of an abuse of discretion in this state is failure to exercise discretion or its exercise on grounds or for reasons clearly untenable, or to an extent clearly unreasonable, and an abuse of discretion must clearly appear in order for this Court to interfere. Richardson v. Persons, 116 Vt. 413, 416-417, 77 A.2d 842.

Respondent's claim of a lack of time for preparation for his defense is that he was unable to confer with his attorney in the instant action during the six days that he was in court during trial of the former cause against him. The record here shows that respondent had twenty-six days to confer with his counsel in the instant case between the time of his arraignment and the going to trial on December 5, 1963 on the criminal charge.

Respondent and counsel both knew that the instant cause was on the trial list for that term of the Chittenden County Court, and in fact, as late as November 21, 1963, believed that it would be tried as the first case in the week of December 9th. This belief continued until December 5th, when respondent learned that the other cause against him would be first tried.

We agree that the constitutional guarantee of right of counsel also carries with it the right of counsel to prepare his client's defense. Avery v. State of Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377. But, when twenty-six days have been afforded counsel and client to confer on a defense to the relatively uncomplicated charges existing here of passing bad checks, we cannot say that the lower court was unreasonable in refusing a continuance for more time for preparation, or that it acted for untenable reasons.

The misleading docket entries claimed to exist by the respondent do not appear in the record before us. We are governed by the record and matters outside the record are not considered by us. Burlington Building and Loan Assn. v. Ayres et al., 108 Vt. 504, 509, 189 A. 907.

We turn now to respondent's claim that the court abused its discretion in denying his motion for continuance because the jury by which he was tried and convicted in the instant case was drawn from the same array as was the jury which had disagreed in his previous trial. The record does not disclose that the respondent challenged the general array nor questioned the competency of the venire as originally drawn to sit in the second case. The mere fact that a juryman had heard in court or outside what the verdict of the former trial was, would not operate as a disqualification. State v. Prouty, supra; Green v. La Clair, 91 Vt. 23, 26, 99 A. 244. In this instance no members of the first jury were also members of the jury that sat on the instant case.

The only citation in respondent's brief on the question raised is Young v. Commonwealth, Ky., 286 S.W.2d 893. This is somewhat dubious support for respondent's contention. The decision in the case cited was that a jury panel was not subject to a challenge on the grounds of implied bias even though it was drawn from the same array as a panel which had six days previously convicted the defendant of another crime.

In the case of United States ex rel. Holly v. Commonwealth of Pennsylvania, D.C., 81 F.Supp. 861, 871, a jury was drawn from the same array as a jury which had recently convicted a respondent on a similar charge, even though there had been a mingling of the members of both juries. A refusal to grant a continuance for bias on the facts stated above was held not to be an abuse of discretion.

The fact here is that the respondent was not convicted by the jury from the same array in the first case tried. They disagreed upon his guilt. In the absence of proof, the effect of the jury's failure to convict upon the rest of the array might well have been bias in his favor, rather than prejudicial to him. The respondent has not shown here any abuse of discretion of this ground by the lower court that would call for interference by this Court in the order of dismissing the motion for continuance. The order is sustained.

Although we have considered the questions raised by the respondent relative to the denial of his motion for continuance, we take this opportunity to state that the lower court might well have denied the motion for respondent's failure to comply with County Court Rule 20, Section 1:

'Motions for continuance shall be accompanied by affidavits stating the reason therefor and the time when such reason was first known.'

No such affidavits accompanied the motion for continuance below. This failure, alone, would be sufficient to sustain the ruling of the court below. Richardson v. Persons, 116 Vt. 413, 416, 77 A.2d 842. Such failure to file affidavits and the absence of such affidavits might also be a factor in the determination by the court of whether the motion for continuance was filed in good faith.

Although respondent has made a general statement that denial of other motions made by him by the court below was an abuse of discretion, he does not...