State v. Harvey

382 A.2d 210 (1977)

STATE of Vermont v. Ernest HARVEY, Jr.

No. 79-75.

Supreme Court of Vermont.

December 6, 1977.

Stephen W. Webster, Orange County State's Atty., Randolph, M. Jerome Diamond, Atty. Gen., and William T. Keefe, Asst. Atty. Gen., Montpelier, for plaintiff.

Richard I. Burstein, Randolph, and Bennett E. Greene, Essex Center, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

PER CURIAM.

This is a mandatory appeal, 13 V.S.A. § 7401; V.R.A.P. 3(b), from a conviction of first-degree murder, 13 V.S.A. §§ 2301, 2303, in the Caledonia Superior Court. Prior consideration of the appeal was delayed due to alleged gross inadequacies in the record. This Court, on motion, remanded the cause for determination of the accuracy of the record, V.R.A.P. 10(e), and ordered that a different judge preside over the proceedings on the remand in view of the probability that the judge who had presided at trial would be a necessary witness. See Isabelle v. Proctor Hospital, Inc., 132 Vt. 243, 246, 315 A.2d 241, 243 (1974).

The findings upon remand that have been reported to this Court reveal a record that is so fraught with error that a just review of the questions raised on appeal is impossible. Since any attempt to review the conviction might well result in a gross miscarriage of justice, a new trial will be granted. Wemyss v. Viens, 125 Vt. 81, 82, 211 A.2d 238, 239 (1965).

Reversed and remanded.