Woodmansee v. Stoneman

• Decision Date: 21 August 1975
• Docket Number: Nos. 182-72,173-72 and 74-73,s. 182-72
• Citation: 344 A.2d 26,133 Vt. 449
• Court: Vermont Supreme Court
• Parties: Bernard WOODMANSEE v. R. Kent STONEMAN. STATE of Vermont v. Bernard J. WOODMANSEE.

Page 26

344 A.2d 26

133 Vt. 449

Bernard WOODMANSEE v. R. Kent STONEMAN.

STATE of Vermont v. Bernard J. WOODMANSEE.

Nos. 182-72, 173-72 and 74-73.

Supreme Court of Vermont.

Aug. 21, 1975.

Reargument Denied Nov. 24, 1975.

Francis X. Murray, Chittenden County State's Atty., Burlington, for state.

Robert Edward West, Defender Gen., Gregory A. McKenzie, Deputy Defender Gen., and Charles S. Martin, Appellate Defender, Montpelier, for Woodmansee.

Before BARNEY, C. J., SMITH, DALEY, and LARROW, JJ., and KEYSER, J. (Ret.), Assigned.

LARROW, Justice.

There appeals, all arising from the same criminal charge and conviction, were argued together in this Court. Appellant Woodmansee was charged below with violation of 13 V.S.A. § 5, by assisting one Frank Berard to avoid arrest and punishment for the crime of murder. See State v. Berard, 132 Vt. 138, 315 A.2d 501 (1974).

In No. 182-72, an appeal was taken from the order of the Windsor County (now Superior) Court denying appellant's habeas corpus petition. No. 173-72 was an attempt to invoke the original jurisdiction of this Court to compel action by the District Court as to motions and related matters then pending before it. No. 74-73 is a direct appeal from the conviction and sentence on the principal charge. Nos. 173-72 and 74-73 have been briefed together, with the understanding that matters raised in No. 173-72 and not briefed are to be treated as waived. However, we have considered all matters raised and not rendered moot by the eventual conviction and sentence.

The habeas corpus petition (No. 182-72 was addressed to the Windsor County Court because the petitioner then confined, awaiting trial, at the State Prison in Windsor. He claimed that his bail was constitutionally excessive, a matter later ruled upon by this Court in State v. Woodmansee, 131 Vt. 22, 298 A.2d 814 (1972). He also claimed illegal imprisonment because of the lack of a probable cause hearing, citing 13 V.S.A. §§ 5551-5553, and various federal decisions. The trial court dismissed his petition, correctly pointing out that the cited statute had been repealed, holding the bail not excessive, and not ruling on the Fourth Amendment question raised by petitioner and subsequently decided in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1957). Petitioner had, with foresight, cited the trial court decision in Gerstein. The County Court also ruled against petitioner on a collateral claim that the complaint lacked legal specificity.

The trial court ruling with respect to repeal of the statute relied upon was correct. The repeal was effective July 1, 1972. 1971, No. 258 (Adj.Sess.), § 19. Its ruling with respect to the specificity of the complaint has been rendered moot, since the complaint was subsequently amended.

In the then status of the case, the failure of the trial court to consider the Fourth Amendment claim raised by petitioner, that he had been detained without a probable cause hearing or finding, was error. Gerstein, supra. The issue is now, however, moot. Subsequent to the proceedings in Windsor County Court, a probable cause hearing was held, and findings made, on the basis of the amended complaint. Moreover, even if this procedure had not been followed, subsequent to conviction reversal is not required for failure to hold a probable cause hearing. Gerstein supra, 95 S.Ct. at 865-66:

In holding that the prosecutor's assessment of probable cause is not sufficient alone to justify restraint on liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court's prior holding that a judicial hearing is not prerequisite to prosecution by information. Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. Thus, as the Court of Appeals noted below, although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the gound that the defendant was detained pending trial without a determination of probable cause. (Citations omitted.)

For the foregoing reasons, the appeal in No. 182-72 must be dismissed.

With respect to the District Court trial on the merits, the respondent has assigned and briefed at length numerous claims of error, ranging from claimed abuses of the statutory inquest procedure to obtain evidence, through failure to exculde hearsay evidence, improper limitation of cross-examination, improper argument, insufficiency of proof of guilt, and improper jury instruction, to imposition of an illegal sentence. We regard his claim of insufficiency of the evidence to justify conviction, upon the information as here framed, to be dispositive of the present appeal and to require reversal and remand. We will therefore, under our usual practice, treat at length only that assignment of error, with comment upon such of the other claims as may become pertinent upon retrial.

The information upon which the respondent was tried was amended upon the State's motion before trial. It charged violation of 13 V.S.A. § 5 in that respondent, not being within the degrees of relationship excluded by the statute, assisted Frank Berard in avoiding arrest and imprisonment for the crime of murdering one Raymond Lestage. Recital at length of the gory details of that murder is not here required; they are set out at length in State v. Berard, supra. Framed in the conjunctive, and in one count rather than in the two counts that careful pleading would indicate, the information charged the respondent with such assistance in two particulars, by threatening the life of Linda Badore, an eyewitness, to prevent her from telling the truth about the killing, and by helping Frank Berard destroy a car which had been used in the killing. The sufficiency of the evidence to establish the claimed threats is not seriously questioned by the respondent, although he does attack the admissibility of some of it. He claims now, however, as he did below by several motions to stike that allegation, that there was insufficient evidence to establish his claimed complicity in the burning of the car, even considering some that was improperly admitted. Since the case was submitted to the jury on both claims with the instruction to find the respondent guilty if he did either one of the alleged acts, respondent claims the general verdict could have been based upon an allegation not supported by the evidence. The State agrees that the verdict must be set aside if there was not sufficient evidence on both allegations, and this is indeed a necessary conclusion, because under the conjunctive allegation and the court's instructions the guilty verdict could have been based on either or both allegations. This is not the situation of State v. Wheeler, 35 Vt. 261 (1862), where the presence of separate counts made it unnecessary to set aside a general verdict as to the ones supported by the evidence. Here, unlike Wheeler, the verdict must be set aside if, as respondent claims, there was insufficient evidence to implicate him in the burning of the car. Our analysis bears out his contention of insufficiency.

This Court has long adhered to the view that where evidence of guilt is entirely circumstantial the circumstances proved must exclude every reasonable hypothesis except the one that the defendant is guilty. State v. Fox, 123 Vt. 82, 181 A.2d 74 (1962). And this conclusion cannot be reached by basing one inference from established facts upon another inference. State v. Marini, 106 Vt. 126, 146, 170 A. 110 (1934). Under these tests the evidence was indeed sparse, and cannot support the verdict.

The evidence introduced at most indicates that Berard had a plan to burn the car, that Woodmansee came to the apartment where Berard was, and that they left shortly afterward, with Berard stating 'I have no idea where to take it' and Woodmansee responding 'Don't worry about it, I know.' The only specific reference was to 'it', not to any vehicle as such. Shortly thereafter Berard and Woodmansee left, Berard in the car later burned, Woodmansee in another. There was no evidence as to the direction taken by each. At a consistent time shortly thereafter the car was found ablaze in a rural area. There was no direct evidence that Woodmansee burned the vehicle or was present when it was burned. In fact, beyond testimony that the fire seemed to have started in the passenger compartment, there was no evidence of its cause. On this state of the evidence, we agree with respondent's contention that there is at best established a conjectural theory of his activity, which falls far short of excluding every other reasonable hypothesis. Even with Berard's objected to statement of intent, made outside respondent's presence, there was no evidence that respondent knew of any plan to burn the vehicle or participated in it. The possibility was indeed established, but 'suspicion, however strong, will not take the place of evidence supporting his participation.' State v. Mecier, 126 Vt. 260, 263, 227 A.2d 298, 300 (1967). The allegation that he 'helped' Frank Berard destroy the vehicle by burning can be sustained only by speculation and surmise. The conviction must be set aside and the cause remanded for new trial.

What we have said is sufficient to dispose of the immediate issue before us. But we are well aware of the prospect of retrial, and of the protracted nature of the first trial, of some two weeks duration. We will therefore comment on other issues raised by the respondent, and thoroughly briefed by both parties, insofar as recurrence of the questions involved is likely.

Respondent has urged that the trial court abused its discretion in not permitting jurors to be separately examined on voir dire, because of the extensive publicity and widespread reputation of the respondent. He briefs that justice mandates employing the...