State v. Prime, 403 A.2d 270 (Vt. 1979). · Go Syfert
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State v. Prime, 403 A.2d 270 (Vt. 1979). Cases Citing This Book View Copy Cite
43 citation events across 1 distinct court.
Strongest positive: State v. Jones (vt, 1993-07-16)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Top citers, strongest first. 9 distinct citers.
discussed Cited as authority (rule) State v. Jones
Vt. · 1993 · confidence medium
Defendant relies on State v. Prime, 137 Vt. 340, 342 , 403 A.2d 270, 271 (1979), in which we held that a judgment of acquittal should have been granted because the “record [did] not establish contact, nor [were] we convinced that the vagueness [was] due to the defendant’s underdeveloped vocabulary.” Id.
discussed Cited as authority (rule) State v. MacHia (2×)
Vt. · 1990 · confidence medium
Defendant urges us to analogize the instant case to State v. Prime, 137 Vt. 340, 342-43 , 403 A.2d 270, 272 (1979), where we held that a defendant's right to a jury free from the taint of any suspicion of extraneous influences could only be waived by defendant's personal, knowing and intelligent waiver.
discussed Cited as authority (rule) State v. Bailey (2×)
Vt. · 1984 · confidence medium
The record is devoid of “any suspicion of extraneous influences.” State v. Prime, 137 Vt. 340, 343 , 403 A.2d 270, 272 (1979) (quoting State v. Woodard, supra, 134 Vt. at 158 , 353 A.2d at 323-24 ).
discussed Cited as authority (rule) State v. Partlow
Vt. · 1983 · confidence medium
Taking the evidence in the light most favorable to the prosecution, which we must do in reviewing motions for acquittal, State v. Prime, 137 Vt. 340, 341-42 , 403 A.2d 270, 271 (1979), the record discloses that at approximately three o’clock on the morning of April 23, 1981, a silent alarm at the Broad Acres Roller Rink building in Colchester signalled the local police department that a break-in was in progress.
discussed Cited as authority (rule) State v. Menard
Vt. · 1982 · confidence medium
On appeal we must view the evidence in the light most favorable to the State, excluding modifying evidence. *49 State v. Jaramillo, 140 Vt. 206, 208 , 436 A.2d 757, 759 (1981); State v. Prime, 137 Vt. 340, 341-42 , 403 A.2d 270, 271 (1979).
cited Cited as authority (rule) State v. Camley
Vt. · 1981 · confidence medium
State v. Prime, 137 Vt. 340, 342 , 403 A.2d 270, 272 (1979); State v. Woodard, 134 Vt. 154, 158 , 353 A.2d 321, 323 (1976); State v. Barrett, 130 Vt. 197, 201 , 290 A.2d 14, 16 (1972).
discussed Cited as authority (rule) State v. Allen
Vt. · 1981 · confidence medium
The record thus demonstrates precisely the sort of “vagueness” we condemned in State v. Prime, 137 Vt. 340, 342 , 403 A.2d 270, 271 (1979); it may indeed be worse, because absence of the missing element was deliberate rather than inadvertent on the part of the witness.
discussed Cited as authority (rule) State v. Connarn
Vt. · 1980 · confidence medium
V.R.Cr.P. 29, Reporter’s Notes; State v. Blakeney, 137 Vt. 495, 500-01 , 408 A.2d 636, 640 (1979); State v. Prime, 137 Vt. 340, 341-42 , 403 A.2d 270, 271 (1979); State v. Eaton, 134 Vt. 205, 206 , 356 A.2d 504, 505 (1976).
discussed Cited "see" State v. Lawton (2×)
Vt. · 1995 · signal: see · confidence high
See State v. Prime, 137 Vt. 340, 342 , 403 A.2d 270, 271 (1979) (element of contact not established); State v. O’Neill, 589 A.2d 999, 1002-03 (N.H. 1991) (testimony that defendant “stuck his fingers in my bum” insufficient to support penetration of anus.) The decision in Prime does not detail the testimony found to be insufficient and does not aid our analysis.
State of Vermont
v.
Richard F. Prime
244-78.
Supreme Court of Vermont.
Jun 5, 1979.
403 A.2d 270
Dale 0. Gray, Caledonia County State’s Attorney, and Christopher B. Leopold, Deputy State’s Attorney, St. Johns-bury, for Plaintiff., James L. Morse, Defender General, and William A. Nelson, Appellate Defender, Montpelier, for Defendant.
Barney, Daley, Larrow, Billings, Hill.
Cited by 15 opinions  |  Published
Hill, J.

The defendant was charged with the crimes of sexual assault (two counts) and simple assault. He was found guilty of all counts by a jury, and he timely appeals from the judgment thereon. We reverse.

I.

The defendant contends that the State failed to prove Count 1 of the information. That count charged a violation of 18 V.S.A. § 3252(1) (A), which makes it a crime to compel another person, not a spouse, to participate in a sexual act without his consent. A sexual act is defined, inter alia, as “conduct between persons consisting of contact between . . . the penis and the anus.” 13 V.S.A. § 3251(1). At the close of the State’s case, the defendant raised the issue by motion for a judgment of acquittal under V.R.Cr.P. 29. The issue on such a motion is “whether, taking the evidence in the light most favorable to the State and excluding modifying evidence, the State has introduced evidence fairly and reasonably tend[*342] ing to show the defendant guilty beyond a reasonable doubt.” State v. Eaton, 134 Vt. 205, 206, 356 A.2d 504, 505 (1976). The defendant claims the denial of his motion was error.

The State contends that the element of contact was established, albeit in vulgar slang with which the record is replete. It further argues that the imprecision in the description, if any, is attributable to the defendant’s limited background. On both points, we disagree. The record does not establish contact, nor are we convinced that the vagueness is due to the defendant’s underdeveloped vocabulary. The streets do not lack anatomical synonyms for anus; the words were there, if only the prosecutor’s questions had elicited them.

The motion for judgment of acquittal should have been granted. On this count we reverse and order judgment for the defendant.

II.

After the jury was empanelled but before the voir dire and the start of the trial, the State’s Attorney informed the court that, without his knowledge, a petition to place his name on the ballot had been circulated among the jury panel. Four jurors had signed. The court notified defense counsel of the petition. It offered to allow counsel to cross-examine the jurors or to discharge the panel and begin anew. Counsel questioned the sheriff who had circulated the petition and waived any claim of bias.

The defendant was neither present when the court was advised of the petition nor told by his attorney of its existence. In fact, he first learned of the incident and of his counsel’s waiver when he read the transcript while preparing this appeal. He now claims that he was denied his constitutional right to a fair and impartial jury as guaranteed by the Sixth Amendment.

The State contends that while counsel’s waiver without consultation is questionable, unless the defendant shows prejudice, his constitutional right has not been violated. It further asserts that no showing of prejudice has been made here. We agree with the defendant.

[*343] Eeversible error in this regard does not depend on a showing of prejudice in an individual case.

No right is more fundamental to a defendant than a fair trial by jury, and the law is most sensitive to any infringement or impairment of that fundamental and constitutional right. It is the duty of this Court, when confronted with a record that discloses even a possible infringement of a defendant’s right to a jury free and untainted by any suspicion of extraneous influences, to set aside a guilty verdict.

State v. Woodard, 134 Vt. 154, 158, 353 A.2d 321, 323-24 (1976). The right to an unbiased jury is a personal right which may be waived only by the defendant and only with a knowing and intelligent waiver. See Fay v. Noia, 372 U.S. 391, 439 (1963). It is true that counsel satisfied himself that the jury was not biased. The court also indicated its belief that no prejudice existed. Nonetheless, as the State concedes, the defendant was not advised of the circumstances. He did not, and could not, knowingly and intelligently waive possible taint. Thus, we must reverse and remand for a new trial.

As the case must be retried, we do not reach the other matters raised on appeal which are not likely to recur.

Count 1: Judgment of guilty and sentence vacated and judgment of not guilty entered.

Counts 2 and 3: Reversed and remanded for a new trial.