State v. Billado

State v. Billado  (95-361); 165 Vt 615; 686 A.2d 476

[Opinion Filed 2-Oct-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-361

                            SEPTEMBER TERM, 1996

State of Vermont                     }     APPEALED FROM:
                                     }
                                     }
     v.                              }     District Court of Vermont,
                                     }     Unit No. 3, Orleans Circuit
Carroll Billado                      }
                                     }     DOCKET NO. 406-9-93 OsCr

       In the above-entitled cause, the Clerk will enter:

       Defendant appeals his unlawful mischief conviction.  We affirm.

       While serving as a deputy sheriff, defendant was involved in the chase
  of a man driving a pickup truck.  Defendant and another officer eventually
  found the truck, which had been abandoned by the driver.  Defendant was
  charged with and convicted of unlawful mischief for smashing the truck's
  front windshield and slashing its tires.

       Defendant argues that he was denied the right to trial by an impartial
  jury when the trial court denied his motions to change venue, to quash
  venire, and to strike one of the jurors. Regarding the venue issue, he
  claims that negative pretrial publicity created sentiment against him in
  the community.  According to defendant, the community's ill feelings toward
  him were demonstrated by the length of time it took to draw a jury and by
  the number of negative responses provided on the jury questionnaire. 
  Defendant has fallen far short, however, of showing that the court abused
  its discretion in denying his motion to change venue.  See State v. Truman,
  124 Vt. 285, 289, 204 A.2d 93, 96 (1964) (trial court's ruling on request
  for venue change will not be disturbed absent showing court abused its
  discretion).  A request for a change of venue should be granted "if the
  court is satisfied that there exists in the county or unit where the
  prosecution is pending so great a prejudice against the defendant that he
  cannot obtain a fair and impartial trial there."  V.R.Cr.P. 21(a). 
  Negative publicity, without a showing of prejudice, is insufficient to
  require the trial court to change venue.  See Truman, 124 Vt. at 289-90,
  204 A.2d  at 96 (newspaper articles, even though denunciatory in character,
  are not in themselves sufficient to require change of venue, absent
  evidence of actual prejudice).  Here, like the news accounts in Truman, the
  articles proffered by defendant, which were published between three and
  seven months before the trial, merely reported facts surrounding
  defendant's case without pronouncing defendant's guilt or inflaming
  readers.  Cf. State v. Chenette, 151 Vt. 237, 252, 560 A.2d 365, 375 (1989)
  (no abuse of discretion in denying motion for venue change where defendant
  claimed that he was notorious in community, that he had been subjected to
  negative press three years earlier on unrelated matters, and that there
  were news reports on accusations against him in his criminal case); State
  v. Winters, 136 Vt. 469, 470-71, 392 A.2d 429, 430 (1978) (proper denial of
  motion for change of venue where newspaper reporting on case was factually
  accurate for most part).

       Equally unavailing is defendant's argument that he was deprived of an
  impartial jury because of the court's denial of his motions to quash the
  venire and strike a particular juror. On the morning the trial began, one
  of the jurors was observed entering the courtroom holding the morning
  newspaper.  The newspaper contained a front-page story reporting that as
  the result of debts run up by the former sheriff, defendant's former boss,
  the sheriff's department was being denied further credit.  Defendant
  expressed concern that the jury was being exposed to negative publicity
  regarding the sheriff with whom he had worked.  The trial court refused to
  quash the venire or strike the juror, stating that the subject of the
  article was not directly related to defendant's trial; however, the court
  invited defendant to question the venire regarding their access to recent
  newspaper accounts concerning defendant.  Shortly thereafter, during
  general

 

  voir dire, the court asked if any of the jurors had heard or read anything
  about the case in the past day.  None of the jurors indicated that they had
  read anything about the trial.  The juror that had brought the newspaper
  into the courtroom was excused for cause that same morning before the trial
  started when he acknowledged during general voir dire that he was familiar
  with the area where the pickup truck had been abandoned.  Defendant has
  failed to show how he was prejudiced by the court's refusal to excuse the
  juror earlier that morning.  Further, defendant has failed to demonstrate
  that the jury was not impartial, or that the court abused its discretion by
  denying his motion to quash the venire.  See State v. Dragon, 135 Vt. 168,
  170, 376 A.2d 12, 13 (1977) (existence of out-of-court knowledge about
  defendant or alleged crime is not sufficient of itself to establish that
  jury was prejudiced).

       Defendant also argues that the court erred by denying his motions for
  acquittal and for judgment notwithstanding the verdict, and that there was
  insufficient evidence of guilt for the jury to determine beyond a
  reasonable doubt that defendant had committed the offense for which he was
  charged.  These arguments boil down to the same contention -- that the
  evidence of guilt was insufficient to convict defendant.  Upon review of
  the record, we conclude that the evidence was sufficient.  See State v.
  Derouchie, 140 Vt. 437, 445, 440 A.2d 146, 150 (1981) (review of
  sufficiency of evidence and of denial of motion for acquittal is governed
  by same standard: whether evidence, when viewed in light most favorable to
  State, is sufficient to convince reasonable trier of fact that defendant is
  guilty beyond reasonable doubt).  The State's chief witness, the other
  deputy who was with defendant when they located the abandoned pickup,
  testified that several times while he was looking for signs of the driver's
  escape he heard hissing sounds like air rushing from tires, and that on a
  couple of those occasions he observed defendant near one of the tires.  He
  also testified that at one point he heard a loud bang followed by the sound
  of glass breaking, and that he observed defendant near the front of the
  pickup at that time. He and another witness testified that when a third
  officer asked him and the defendant whether a wrecker would be needed,
  defendant responded that the pickup was not going anywhere. Finally, he
  testified that he was afraid to act against defendant, who was his superior
  officer, and that when he returned to the station he joked that a tree
  branch had knocked out the pickup's windshield.  Notwithstanding
  defendant's claims that the officer's testimony was at times inconsistent,
  we conclude that the testimony was sufficient for the jury to determine
  beyond a reasonable doubt that defendant was guilty of the crime charged. 
  Id. at 444, 440 A.2d  at 149 (proper focus of judicial review should be on
  quality and strength of evidence, whether direct or circumstantial).  For
  the same reason, the court did not err in denying defendant's motion for a
  new trial.

       Affirmed.

     BY THE COURT:



     _______________________________________
     Frederic W. Allen, Chief Justice

     _______________________________________
     Ernest W. Gibson III, Associate Justice

     _______________________________________
     John A. Dooley, Associate Justice

     _______________________________________
     James L. Morse, Associate Justice

     _______________________________________
     Denise R. Johnson, Associate Justice