State v. Woodard, 232-74
| Decision Date | 04 February 1976 |
| Docket Number | No. 232-74,232-74 |
| Citation | 134 Vt. 154,353 A.2d 321 |
| Court | Vermont Supreme Court |
| Parties | , 86 A.L.R.3d 776 STATE of Vermont v. Charles WOODARD. |
John A. Rocray, Windham County State's Atty., and Craig R. Wenk, Deputy State's Atty., Brattleboro, for plaintiff.
Robert Edward West, Defender Gen., and Robert M. Paolini, Deputy Defender Gen., Montpelier, for defendant.
Before BARNEY, C. J., and SMITH, DALEY, LARROW and BILLINGS, JJ.
The defendant, Charles Woodard, was charged with violating 13 V.S.A. § 3201, specifically with the rape of a female person over the age of 16, in the Town of Marlboro, Windham County, Vermont. After a plea of not guilty on September 26, 1973, trial was commenced in the District Court of Vermont, Windham Circuit, on April 4, 1974. The jury returned with a verdict of guilty, and the defendant was sentenced to zero to ten years. He has duly taken his appeal to this Court from the jury verdict and resulting judgment.
The first question presented to this Court by the brief of the defendant and his oral argument is whether testimony by a former juror resulted in denial of trial by an impartial jury.
One of the jurors, Robert Abel, was called as a witness in the case and testified to having overheard a telephone conversation in the lobby outside the courtroom between the defendant and an unknown party. The juror testified that the defendant stated over the telephone, "I'm hung unless I have an alibi' or
Defendant's briefed contention is that the juror should not have been allowed to testify as a witness. This Court has recently held in State v. Kelly, 131 Vt. 582, 585, 312 A.2d 906 (1973), that there is no rule in Vermont generally exempting judges from testifying. However, the rule is that a judge may not be a witness in a cause before him. It necessarily follows that a juror is a competent witness, but a juror testifying in a case on which he is sitting must then take no further part in the determination of matters before the jury. State v. Bissell, 106 Vt. 80, 95, 170 A. 102 (1934).
But the real question presented to us is whether the defendant was denied trial by an impartial jury in violation of his constitutional right, Vt.Const. ch. I, art. 10; U.S.Const. amend. VI., because of Abel's continued presence on the jury during the period after he overheard the defendant's telephone call and the time he, Abel, took the stand. Although this question was not raised by the defendant in his brief, it was presented in oral argument. While counsel for the defendant did not move for a mistrial preceding the testimony of the juror witness, he did object 'to the entire line of questioning', which might well have alerted the trial court to the question involved. But even if the defendant were ineffectual in raising the issue below, and here, we may consider it if we find the 'glaring error' spoken of in State v. Morrill, 127 Vt. 506, 511, 253 A.2d 142, 145 (1969), 'so grave and serious that it strikes at the very heart of the (defendant's) constitutional rights.'
The record before us establishes that juror Abel overheard the telephone call made by the defendant in the early morning of the second day of trial. After hearing the call, he resumed his seat in the jury and listened to the testimony of two witnesses. Only after sitting with the jury after hearing the telephone conversation to which he later testified and hearing the testimony of two other witnesses in the case did he then disclose, late in the morning, to the presiding judge the information which he had obtained. The juror was not questioned as to whether he had imparted the information he had received to other jurors sitting on the case before his contact with the court or expressed any opinion to his fellow jurors on what effect the information he had received might have on their future deliberations.
As this Court stated in State v. Ovitt, 126 Vt. 320, 324, 229 A.2d 237, 240 (1967);
A jury is an integral part of the court for the administration of justice and on elementary principles its verdict must be obedient to the court's charge, based solely on...
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...Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654; United States v. Howard, 506 F.2d 865 (5th Cir.); and Vermont v. Woodard, 353 A.2d 321 (Vt.), inter alia. Neal asserts that the effect of juror Mitchell's comment was to commence juror deliberations prematurely, that the com......
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...even a possible infringement of his right to a jury untainted by any suspicion of extraneous influence. State v. Woodard, 134 Vt. 154, 158, 353 A.2d 321, 323-24 (1976). The test for jury prejudice, through extraneous influences and considerations, is not whether such irregularities actually......
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