State v. Truman

• Decision Date: 06 October 1964
• Docket Number: No. 1963,1963
• Citation: 124 Vt. 285,204 A.2d 93
• Parties: STATE of Vermont v. Vernon V. TRUMAN.
• Court: Vermont Supreme Court

Page 93

204 A.2d 93

124 Vt. 285

STATE of Vermont v. Vernon V. TRUMAN.

No. 1963.

Supreme Court of Vermont.

Oct. 6, 1964.

John F. Bernasconi, State's Atty., Barre, for plaintiff.

Stephen B. Martin, Barre, for defendant.

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

SHANGRAW, Justice.

The respondent has brought this case before us on an appeal following his conviction on counts of breaking and entering in the nighttime, and breaking and entering in the daytime, a violation of 13 V.S.A. §§ 1201 and 1202 respectively.

The assignments of error relate to the denial by the presiding judge of respondent's application for a change of venue; the refusal of the trial court to allow counsel to withdraw from the case; and from the court's denial of respondent's motion for a mistrial.

Following is a summary of the factual situation leading up to the issues presented by the appeal. On April 19, 1963 the respondent was arraigned in Montpelier Municipal Court to answer to an information charging him on one count of breaking and entering in the nighttime and also breaking and entering in the daytime. On the same day John Shuttle, Albert Premont, and Richard Diego were also arraigned in municipal court on identical charges. The respondents Truman, Shuttle, and Premont requested that Stephen B. Martin, attorney of Barre appear as their counsel. Mr. Martin was appointed as counsel to represent these three respondents. Diego was represented by different counsel. On April 24, 1963 Diego pleaded guilty. On April 26, 1963 Premont withdrew his plea of not guilty and pleaded guilty.

Informations were filed against the respondent and Shuttle in the Washington County Court on May 3, 1963 charging them with the same offenses. Respondent's case was assigned for trial May 7. On May 6 appellant's counsel and the state's attorney informed the clerk of the Washington County Court that the cases against the respondent and Shuttle would be disposed of in the municipal court. On May 7 Shuttle pleaded guilty in municipal court to the two offenses for which he was first charged.

The respondent Truman apparently changed his mind and declined to plead guilty in municipal court. A new information was filed against him in the Washington County Court on May 9 again charging him with breaking and entering in the nighttime, and breaking and entering in the daytime.

On May 13 the respondent pleaded not guilty to this new information, and his case was assigned for trial on May 15. Mr. Martin then requested permission to withdraw as Truman's counsel on the ground of a conflict of interest, inasmuch as he had represented Shuttle and Premont neither of whom had been sentenced. Counsel was granted leave to withdraw on condition that he have someone ready to represent the respondent when the case was reached for trial. Other counsel was not obtained.

On May 13 respondent filed with the presiding judge an application for a change of venue under 13 V.S.A. § 4631, 'because the matters involved in said action have been given such wide publicity through radio stations and newspapers circulating in said County of Washington and otherwise in a manner so discriminatory to defendant and prejudicial to his interest, that a fair trial by an impartial and unprejudiced jury cannot be had in said Washington County Court.' A hearing was held May 14 on the application. On the same day findings of fact were made and filed by the presiding judge. In the exercise of judicial discretion the motion was denied.

On May 15, 1963, and prior to trial, the respondent moved for a reconsideration of the denial of a change of venue. Counsel again moved for permission to withdraw as respondent's attorney. These motions were denied. The trial began on May 15 lasting three days. The jury returned as verdict of guilty on both counts. On May 23 the respondent filed a motion for a new trial, and after hearing thereon, the motion was denied. Judgment was thereupon entered on the jury's verdict, and the respondent has appealed.

The first question relates to the denial of the motion for a change of venue. In this connection the presiding judge made the following findings.

'(7) The series of breaks in the Northfield area for which the respondent and others were arrested received extensive coverage in the Times-Argus, a daily newspaper circulating in Washington County and surrounding areas. (Respondent's Exhibits D, E, F, G and H)

'(8) That during the period of time following the arrest of the respondent and the other parties involved, radio station WSKI, operating in Montpelier with a coverage area of approximately thirty-five miles radius, broadcasted the respondent's involvement, his arrest and arraignments in Montpelier Municipal Court and Washington County Court, and other news items in connection therewith. (Respondent's Exhibits A, B and C)

'(9) These radio broadcasts began at five-thirty in the forenoon and concluded at twelve-thirty in the afternoon and on the following hours--six A.M., six-thirty A.M., seven, seven-thirty, eight-thirty, ten-thirty and eleven-thirty A.M. and twelve-thirty P.M. and consisted of approximately fifteen daily newscasts.

'(10) Respondent's arrest, along with the other parties involved, and the charges preferred against them was treated as a major local story by the radio station.

'(11) The Court is unable to find anything unusual in the procedures followed by Station WSKI in disseminating the news concerning the respondent.

'(12) The Times-Argus possesses an over-all daily circulation of approximately eleven thousand five hundred, the major part of which is in the cities of Barre and Montpelier.

'(13) We have carefully examined the newspaper articles introduced as evidence by the respondent and we fail to find anything of an inflamatory or denunciatory nature in them. In fact, the articles appear nothing more than abstract reporting, the type of 'news story' we have become familiar with, know of, and are little influenced or impressed by.

'(14) We are unable to find anything of an inflamatory nature in the radio spot newscasts.

'(15) We are unable to find from the evidence introduced by the respondent that there exists in Washington County such an actual prejudice against him that a fair and impartial trial cannot be had.'

Immediately following the filing of the findings the respondent presented to the presiding judge objections to his failure to find certain facts. These related to the first information filed in county court against the respondent on May 3, 1963. In substance, the objections called attention to the fact that during the morning of May 7, 1963 Frank Follett, a news reporter for the Times-Argus, and one Robert Brannon, newscaster for radio station WSKI, inquired of the presiding judge as to why the 'Truman Case' scheduled to begin that morning was not in progress. They were informed by the judge that the information then pending against the respondent in the county court would be discontinued as the respondent was returning that morning to the Montpelier Municipal Court for a disposition of his case. An article covering this point appeared in the Times-Argus dated May 7, the Burlington Free Press, and was also reported by WSKI in its regular newscast on the same day. The foregoing publicity is urged by the respondent as a further reason for granting his request for a change of venue, which was denied. No contention is made that the information furnished the press and radio was incorrect.

By 13 V.S.A. § 4633 it is provided that upon applications made for a change of venue, 'the judge to whom the application is preferred, in his discretion, by an order in writing, may direct that the trial of such respondent be removed to and had in some other county named.'

The action of the presiding judge in denying the motion for a change of venue was clearly a discretionary ruling, and is not to be revised unless an abuse of discretion is shown. State v. Stacy, 104 Vt. 379, 389, 160 A. 257, 747. In determining whether there has been an abuse of discretion the test is whether the discretion was exercised on grounds or for reasons clearly untenable, or to an extent clearly unreasonable. State v. Watson, 114 Vt. 543, 545-546, 49 A.2d 174, citing State v. Stacy, supra.

Newspaper articles, even though denunciatory in character, are not in themselves in the absence of some evidence of the actual existence of a prejudice against the accused, sufficient to require the judge, in the exercise of his discretion, to conclude that a fair and impartial trial cannot be had. State v. Watson, 114 Vt. supra, at 546, 49 A.2d 174.

Here, we merely have reporting of events without any adverse comments in the press or radio reflecting the guilt of the respondent. Nothing inflammatory or denunciatory appeared through either source.

Each prospective juror was ably examined for indications of prejudice by respondent's counsel. None appeared. Each indicated that he was not biased and had formed no opinion as to respondent's guilt. The court instructed the jury to disregard anything that had been read or heard by them. Respondent made no claim of prejudice later during the trial. The motion for a change of venue was not renewed after the jury was impaneled. In fact, respondent failed to exercise all six of his peremptory challenges which he was entitled to by virtue of 12 V.S.A. § 1941.

Our examination of the record fails to disclose that respondent was tried by a prejudiced jury. He fell short of meeting the requirement recently reiterated by the Supreme Court in Beck v. Washington, 369 U.S. 541, 558, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962) 'that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality.' See United States ex rel. Brown v. Smith, 2 Cir., 306 F.2d 596, 602....