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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 ...


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