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10/21/88 STATE VERMONT v. GORDON HUNT

October 21, 1988

STATE OF VERMONT
v.
GORDON HUNT



Appeal by defendant from conviction for first degree murder. Lamoille Superior Court, Bryan, J., presiding. Affirmed.

Present: Peck, J., and Barney, C.j. (Ret.), Costello, D.j. (Ret.), Valente and Jenkins, Supr. JJ., Specially Assigned

SYLLABUS BY THE COURT

1. Courts--Exercise of Authority--Change of Venue

Supreme Court exercises proper authority by ordering change of venue to provide fair, unbiased and judicious tribunal for prosecution of defendant.

2. Appeal and Error--Harmless Error--Failure to Demonstrate Prejudice

Doctrine of harmless error applies to defendant's failure to demonstrate prejudice from court's change of venue.

3. Appeal and Error--Previously Contested Issues--No Reconsideration by Court

Issues already contested during interlocutory appeal will not be considered again by Supreme Court, including new challenges that should have been raised during earlier determination of issue.

4. Judges--Assistant Judges--Participation in Case

Assistant Judges are not disqualified from participation in case when president of their association, without their knowledge or approval, acts in unethical manner with respect to case.

5. Criminal Procedure--Confession--Fruit of Search

Confession that is not fruit of search is properly admitted at trial.

6. Appeal and Error--Improper Admission of Evidence--Harmless Error

It is harmless error to admit improper evidence that is cumulative, since such erroneous evidentiary ruling does not affect substantial rights of party.

7. Appeal and Error--Issue Not Raised Below--Extraordinary Circumstances

Absent showing of extraordinary circumstances, appellate court will not address issue on appeal that was not properly raised and argued at trial.

8. Search and Seizure--Consent to Questioning--Absence of Duress

Absent evidence of duress or coercion, no seizure occurs when defendant voluntarily accompanies police to station for questioning.

9. Criminal Procedure--Request for Parent--Right to Silence

Defendant's request to speak with his father is not per se request to remain silent.

10. Criminal Procedure--Request for Parent--Right to Attorney

Defendant's request to see his father is not invocation of his right to attorney.

11. Appeal and Error--Issue Not Raised Below--Plain Error

Where alleged error is not raised before trial court, it will not be addressed on appeal unless circumstances indicate plain error has occurred, that is, error so grave and serious that it strikes at very heart of defendant's constitutional rights.

12. --Prosecutorial Comment--Inferences from Volitional Statements

Where defendant has chosen not to remain silent, prosecutor may comment to jury, and use for impeachment, inferences from statements which he made of his own volition.

13. --Insanity Plea--Use by Prosecution

Defendant's plea of insanity opens door to broad inquiry by prosecution that may include previous episodes of violent and antisocial behavior, so long as it has some connection to issue of defendant's sanity.

The opinion of the court was delivered by: PECK

Defendant Gordon Hunt was charged with first degree murder in Barre City on April 19, 1982. He was subsequently convicted of the charge following a jury trial in Lamoille Superior Court. He appeals his conviction to this Court. We affirm.

In the late afternoon of the day of the murder, Peter Sophos was found shot to death in his first-floor apartment in Barre. The police were called at approximately 4:30 p.m., and various policemen, investigators and personnel from the state's attorney's office began interviewing people at the scene in order to identify them and determine what happened.

The defendant, who was 19 years old, lived with his father in a second-floor apartment, directly above the victim. From an initial conversation with the police it became apparent that he had been home during the period in which the police believed Sophos had been killed, but he denied hearing or seeing anything unusual.

Around 5:30 p.m. a police officer began to investigate the second-floor hallway for evidence. He noticed a broken padlock casing on the attic door. Believing that the lock might have been broken that day in connection with the murder, the officer climbed the stairs to inspect the third-floor area. The attic was dimly lit so he went back downstairs to obtain a flashlight.

During this initial search of the attic defendant followed the police officer and informed him that the attic was "private property," and he "shouldn't go up there." When the officer returned with the flashlight, and a second police officer to help search the attic, defendant again attempted to accompany them; however, the officers told him firmly to remain downstairs.

At about 6:00 p.m. the officers discovered a rifle behind a cabinet in a space large enough to hide a person. They did not touch the rifle, but one of them stayed with it while the other went downstairs to summon the crime lab team. The latter then obtained the landlord's written permission to search the attic.

Meanwhile, defendant returned to his apartment. He put on his jacket and opened the window in order to jump to a roof five feet below and flee. Before he could accomplish this, however, a police officer knocked on his door, and seeing him in his jacket, with the window open, asked where he was going. Defendant responded that he was going to the store, and the officer asked if he would "stick around" for a little while. He agreed to do so.

Ten minutes later, three officers knocked on defendant's door and asked if he would mind going down to the station so he could be asked some "routine questions." He agreed to go. At this point, defendant was one of two suspects. Although the police intended to obtain statements from a number of people they had spoken to at the apartment building, defendant was the first person asked to go to the station because of "his unnatural curiousity at the crime scene... his presence in the building at the time of the murder."

At the station, defendant was taken into an office and read his Miranda rights, which he waived. Before waiving his rights, he asked if he was under arrest, and was told he was not. He was then questioned a short time about his knowledge of the victim and the murder, and asked to give a fingerprint sample; he did so. One of the three officers then asked how he could have been in his apartment at the time of the murder, not sleeping or watching television, and not have heard a gunshot. Defendant requested to be left alone with this officer and, before the officer said a word, he confessed to the killing.

After the initial confession, defendant gave taped statements to the police: a more detailed and lengthy explanation of what had occurred, that he had voluntarily accompanied the officers to the police station with the understanding that he was free to leave, and that he was freely making the statements. After the initial confession, he requested to see his father, and was told he could do so at a later time.

During the taped interview, defendant provided the officers with other evidence, including the spent cartridge case which he had thrown out at the station. He also took a breath test which showed that he had no alcohol in his blood, and he submitted to a polygraph test. Finally, he dictated a second statement to the police officers, which was signed by him and notarized.

On April 20, 1982, the Washington County State's Attorney filed an information in Washington Superior Court which charged defendant with the first degree murder of Peter Sophos. At the request of defendant, venue was changed from Washington County to Chittenden County, and the Chittenden Superior Court rejected a plea agreement reached between the defendant and the State which would have resulted in a minimum sentence of ten years to serve. Subsequently, venue was moved, over defendant's objection, to the Lamoille Superior Court by order of this Court, where he was found guilty of first degree murder after a trial by jury. The trial court subsequently imposed a sentence of thirty years to life. This appeal followed.

Defendant makes the following claims of error on appeal:

I. The Vermont Supreme Court acted without jurisdiction, and in violation of defendant's due process rights, when it ordered the venue of the case changed;

II. The Chittenden County assistant Judges acted improperly when they rejected the plea agreement;

III. The Lamoille County assistant Judges should have been disqualified from ...


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