State v. Ross
| Decision Date | 04 April 1972 |
| Docket Number | No. 72-71,72-71 |
| Citation | 290 A.2d 38,130 Vt. 235 |
| Parties | STATE of Vermont v. Gilbert E. ROSS. |
| Court | Vermont Supreme Court |
M. Jerome Diamond, State's Atty., and J. Garvan Murtha, Deputy State's Atty., for the State.
Thomas P. Salmon, Bellows Falls, for defendant.
Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.
The defendant was convicted of operating a motor vehicle on a public highway while under the influence of intoxicating liquor after a jury trial in the Windham Circuit of the Vermont District Court. Defendant's appeal raises two issues.
1. Was the defendant denied a fair and impartial trial because of certain remarks made by the state's attorney in his rebuttal argument to the jury?
2. Did the court err in admitting the result of the chemical analysis of defendant's urine sample?
The state's attorney made three statements in his rebuttal argument which the defendant claims were prejudicial and denied him a fair and impartial trial because they were either the personal belief of the state's attorney or not supported by the evidence. These remarks were as follows:
'That's hard to believe that anyone could drink that fast, unless-unless, ladies and gentlemen of the jury, he has got an illness.'
The closing sentence of the argument was:
'Nobody else has said it, but I'll say it, it's hard to believe that that man was not 'bombed' when he passed out.'
'Ladies and gentlemen of the jury, it is your responsibility to see that this man begins to get some help, because if you don't, the next time, it may be one of your children who is walking up School Street, because there was no sidewalk, and gets killed.'
The defendant did not object to these arguments at the very instant they were made. However, immediately upon the conclusion of the state's attorney's argument and before the court's charge to the jury, the defendant requested an instruction by the court to the jury based on the argument. He stated to the court:
It is said at 53 Am.Jur., Trial, § 500, '. . . where counsel goes beyond an appeal to the jury to do their duty and enforce the law and urges a conviction because of extraneous considerations, or states facts and conclusions not supported by the evidence, and urges a conviction by reason thereof, the argument is improper, and may furnish a sufficient ground for a new trial or a reversal.' See also Anno: 78 A.L.R. 1466.
The state claims the defendant waived 'the right to an exception' by his failure to claim an exception to the argument at the time it was made, citing State v. Coolidge, 106 Vt. 183, 190, 171 A. 244. Since that case was decided the necessity for formal exceptions was abolished in 1959 upon the passage by the legislature of 12 V.S.A. § 2381, now (since July 1, 1971) V.R.C.P. 46.
The request was proper and sufficiently specific and definite and made known to the trial court the action the defendant desired the court to take. What the defendant stated called the attention of the court in a manner and apprised the court of the exact point to which it was directed and gave the court an ample opportunity to deal with it. See State v. Schoolcraft, 110 Vt. 393, 396, 8 A.2d 682. This is the manner in which a basis for appellate review is laid. V.R.C.P. 46 (formerly 12 V.S.A. § 2381); Abbadessa v. Tegu, 122 Vt. 338, 173 A.2d 153. Since the state's attorney did not deem it appropriate for him to take curative action concerning his argument, the trial judge should have heeded the defendant's request to charge. Considering the situation as presented, we hold that this case has all the ingredients of complying with State v. Coolidge, supra, 106 Vt. at p. 190, 171 A. 244.
It is self-evident that the remarks of the state's attorney were to brand the defendant as an alcoholic in dire need of treatment and 'help' for a drinking problem. The evidence fails to reveal that the defendant was a person generally addicted to the excessive use of alcoholic liquors. These remarks were obviously inflammatory, wholly improper and uncalled for on any legal issue in the case, and not warranted by the record. They could only serve to prejudice and tend to unfairly influence the jury against the defendant. The general charge to the jury that 'what the attorneys say' is not evidence did not reach the substance of defendant's request and could not be said to have the corrective action requested.
In light of the fact that the court took no corrective measures even though requested by the defendant, we hold that there must be a reversal of the conviction and the defendant afforded a new trial. Under the circumstances the constitutional right of the defendant to a fair and impartial trial was placed in serious jeopardy. 88 C.J.S. Trial § 196b.
The state argues that the state's attorney's remarks were based upon evidence introduced by defendant's counsel through his cross-examination of two state witnesses. This argument is without avail. A careful reading and consideration of the testimony cited in the state's brief fails to support the state's argument. What little testimony is pointed out to us does not merit in any manner the interpretation the state claims for it. We find no direct evidence, or, in fact, any evidence which establishes or even hints that the defendant has an alcoholic illness or problem and needed the help of the jury to bring him to realize that it was a problem-a matter entirely immaterial to any issue in the case. The few questions asked by defendant's attorney related solely to whether the defendant at the time he was found in his car might be sick and needed a doctor, which is a far cry from saying what the state's attorney did to the jury.
The state further attempts to justify the comments made by the state's attorney by its claim that they were not an expression of personal belief. The fallacy of this argument is readily seen from an examination of what the state's attorney said, such as, 'because he's sick', 'because this man is sick from alcohol', 'that it is a problem', 'unless he's got an illness.' There being no support in the evidence for such remarks, we can only conclude that they were an expression of the personal belief or opinion of the state's attorney.
The defendant's second assignment of error relates to the admission into evidence of the chemical analysis report of the defendant's urine sample. He claims the state failed to lay a proper...
To continue reading
Request your trial
-
Turner v. State
...197, 160 S.E.2d 815 (1968); Interstate Life & Accident Insurance Co. v. Whitlock, 112 Ga.App. 212, 144 S.E.2d 532 (1965); State v. Ross, 130 Vt. 235, 290 A.2d 38 (1972); State v. Lafountain, 108 N.H. 219, 231 A.2d 635 (1967); State v. Fornier, 103 N.H. 152, 167 A.2d 56 (1960). This approach......
-
King v. Gorczyk
...The identity of a specimen used in drug testing need not be proved beyond all possibility of doubt to be admissible. State v. Ross, 130 Vt. 235, 240, 290 A.2d 38, 41 (1972). The circumstances need establish only reasonable assurance of the identity of the sample tested. Id. The DOC maintain......
-
State v. Ayers
...v. Savo, 141 Vt. 203, 213, 446 A.2d 786, 792 (1982); State v. King, 131 Vt. 200, 208, 303 A.2d 156, 161 (1973); State v. Ross, 130 Vt. 235, 238-39, 290 A.2d 38, 40 (1972); State v. Bishop, 128 Vt. 221, 229, 260 A.2d 393, 399 (1969); State v. Jackson, 127 Vt. 237, 238, 246 A.2d 829, 829-30 (......
-
State v. Foy
...potential for prejudice, the statement was improper. State v. Blakeney, 137 Vt. 495, 504, 408 A.2d 636, 641-42 (1979). In State v. Ross, 130 Vt. 235, 290 A.2d 38 (1972), the prosecutor remarked that defendant, on trial for driving under the influence of intoxicating liquor, was an alcoholic......