Volume 133 — Vermont Reports

<bold>1. Constitutional Law — Right to Effective Counsel</bold> Appellant had burden of proving allegation of incompetent counsel by a preponderance of the evidence. <bold>2. Constitutional Law — Right to Effective Counsel — Statements</bold> <bold>to Jury</bold> Contention that exchange between defendant's counsel and certain jurors excused on challenge resulted in possible hostility toward defendant on the part of the remaining jurors was purely speculative and had no basis in record on appeal.<page_number>Page 246</page_number> <bold>3. Constitutional Law — Right to Effective Counsel — Statements</bold> <bold>to Jury</bold> Court-appointed counsel's statement to jury, that he was assigned to represent accused, did not indicate to jury a disbelief in accused's cause. <bold>4. Constitutional Law — Right to Effective Counsel — Examination</bold> <bold>of Witnesses</bold> Counsel could not be held incompetent for failure to use two character witnesses who, due to criminal record of one and fact the other had cohabited with defendant, would not have enhanced defendant's reputation. <bold>5. Constitutional Law — Right to Effective Counsel — Tactics and</bold> <bold>Strategy Generally</bold> A lawyer is not bound to accede to his client's wishes, and he may, in the exercise of his professional judgment, fail to assert a right or position of his client. <bold>6. Constitutional Law — Right to Effective Counsel — Examination</bold> <bold>of Witnesses</bold> A trial lawyer's decision not to object is a matter of trial tactics, not evidence of incompetency. <bold>7. Constitutional Law — Right to Effective Counsel — Statements</bold> <bold>to Jury</bold> Content of counsel's final statement is a matter of trial tactics and thus does not display ineffectiveness and is inferentially supported by the evidence. <bold>8. Constitutional Law — Right to Effective Counsel — Tactics and</bold> <bold>Strategy Generally</bold> A trial tactic of questionable validity in retrospect does not compel a conclusion counsel was inadequate. <bold>9. Constitutional Law — Right to Effective Counsel — Evidence</bold> Claim counsel incompetently failed to raise, on appeal, the introduction into evidence of purportedly prejudicial evidence, was totally unsubstantiated where the photographs at issue were not marked as exhibits before the court on petition for post-conviction relief and were not before supreme court on appeal from denial of the petition. <bold>10. Attorney and Client — Strategy and Tactics</bold> Counsel has discretion to determine the best grounds for appeal. <bold>11. Constitutional Law — Right to Effective Counsel — Examination</bold> <bold>of Witnesses</bold> It was error for counsel for defendant charged with murder to bring out, while questioning defendant, defendant's commission of four misdemeanors, including a breach of the peace involving an assault, but not error of such magnitude as to deprive defendant of effective assistance of counsel where there was no clear showing of prejudice.<page_number>Page 247</page_number> <bold>12. Criminal Law — Post-Conviction Relief — Scope</bold> Affirmance of murder conviction laid claim that malice was not proven beyond a reasonable doubt to rest, and claim would not be considered on appeal from denial of petition for post-conviction relief.

<bold>1. Criminal Law — Intent — Proof</bold> The intent included in an attempt to break and enter with intent to commit larceny is a matter of state of mind, necessarily proven, in the absence of admission, only by inference from attendant circumstances; and where evidence is purely circumstantial it must be so cogent as to exclude every reasonable hypothesis consistent with innocence. <bold>2. Criminal Law — Intent — Particular Cases</bold> Defendant, who tried three locked doors of dwelling, then entered garage by moving covering over broken window, took nothing, and left, could not be said to have had the intent included in charge of attempt to break and enter the dwelling with intent to commit larceny, and the question should not have gone to the jury. <bold>3. Evidence — Past Offenses — Admissibility</bold> Evidence of criminal offenses other than that charged is admissible to show motive, intent, knowledge, plan, purpose or preparation leading up to, or connecting defendant with, commission of the offense charged. <bold>4. Evidence — Past Offenses — Use</bold> Where defendant charged with attempt to break and enter with intent to commit larceny admitted to two robbery convictions, the convictions could not be used to establish either a general criminal tendency or a tendency to commit offenses like that alleged.

<bold>1. Appeal and Error — Preservation of Questions — Questions Not</bold> <bold>Preserved, but Considered</bold> Although Supreme Court will not put a lower court in error on an issue not raised below, it will examine the record on appeal and<page_number>Page 473</page_number> reach the question attempted to be raised if the case is one of those rare and extraordinary cases where a glaring error occurred during the trial and strikes at the very heart of the respondent's constitutional rights. <bold>2. Criminal Law — Plea of Nolo Contendere</bold> A plea of nolo contendere has the same legal effect as a plea of guilty insofar as regards all proceedings on the charge and on which the defendant may be sentenced. <bold>3. Criminal Law — Plea of Nolo Contendere</bold> A plea of nolo contendere admits the facts well pleaded, and although the defendant does not admit his guilt, he waives his right to a jury trial, his privilege against compulsory self-incrimination and his right to be confronted by his accusers. <bold>4. Criminal Law — Plea of Nolo Contendere</bold> That plea was nolo contendere rather than guilty was of no constitutional significance with respect to the issue of a knowledgeable, intelligent and voluntary plea. <bold>5. Criminal Law — Plea of Nolo Contendere</bold> Where there was an initial statement by defense counsel that a nolo contendere plea would be entered, followed by subsequent equivocation by defendant in his discussions with the judge, culminating in no real resolution of the nature of the plea, and the trial court did not affirmatively determine that the plea was intelligently and knowledgeably made, if in fact made at all, the proceedings would be vacated and defendant would be allowed to plead anew. <bold>6. Criminal Law — Plea of Nolo Contendere</bold> Record on appeal should affirmatively disclose clear evidence that a plea of nolo contendere was made voluntarily, intelligently and with knowledge.

<bold>1. Evidence — Admissibility Generally — Foundation</bold> The test for a foundation for admissibility of evidence is not absolute certainty, but rather, only requires that the evidence be of demonstrable relevance and of sufficient meaningful substance to be justifiably relied upon as a fact by the jury rather than an insubstantial invitation to conjecture; therefore, imperfections which go only to the weight of the evidence do not require its exclusion. <bold>2. Evidence — Admissibility Generally — Foundation</bold> Supreme Court, on the record, would concur with trial court's determination that test of admissibility of evidence was met by a proper laying of the foundation for the admittance of the evidence.

<bold>1. Estates in Land — Servitudes</bold> Where common grantor of two adjoining parcels of land granted owner of one parcel the right to take water from a spring on the other parcel, a right in the land itself was conveyed. <bold>2. Estates in Land — Servitudes</bold> Where original grants of two adjoining parcels of land gave owner of one the right to take water from a spring on the other, current owner of the dominant estate could take water from a spring on the servient estate developed 27 years after the right was created, there never having been a spring on the servient estate until the spring in question was developed; but equity required owner of the dominant estate to share the cost of developing and maintaining the spring.

<bold>1. Criminal Law — Attempts</bold> An act constituting an attempt to commit a crime must be of such a character as to advance the conduct of the actor beyond the sphere of mere intent and must reach far enough towards the accomplishment of the desired result as to amount to the commencement of the consummation.<page_number>Page 532</page_number> <bold>2. Assault and Battery — Criminal Assault — Elements</bold> Where defendant and another scuffled, defendant picked up a bottle and the other person picked up a rock and defendant advanced upon the other person, who backed up, at which time law enforcement officers arrived, and defendant never came closer than ten feet to the other person and did not attempt to throw the bottle or lunge toward the other person, conviction of simple assault in that defendant attempted to cause bodily injury to the other person would be reversed. <cross_reference>13 V.S.A. § 1023</cross_reference>(a)(1).

<bold>1. Unemployment Compensation — Burden of Proof</bold> Unemployment compensation claimant had burden of proving that he was able to perform, and available for, suitable work. <cross_reference>21 V.S.A. § 1343</cross_reference>(a)(3).<page_number>Page 534</page_number> <bold>2. Unemployment Compensation — Evidence</bold> Individual and cumulative weight and credibility of conflicting statements of doctor testifying at unemployment compensation hearing was for the employment security board, and the board's judgment on the matter was entitled to strong credence as being within the particular province of a regulatory board with recognized competence and expertise. <bold>3. Unemployment Compensation — Eligibility — Availability for</bold> <bold>Work</bold> Employment security board could conclude that unemployment compensation claimant was unable to work where claimant's physician stated, in conflicting medical reports and letters to claimant's attorney all made between September 4 and November 18, that claimant could work part-time, could work full-time at light work, was not able to maintain a gainful occupation on a regular basis, and was able to do any suitable work. <cross_reference>21 V.S.A. § 1343</cross_reference>(a)(3).