Volume 146 — Vermont Reports

<bold>1. Criminal Law — Post-Conviction Relief — Generally</bold> Petition for habeas corpus is not device to provide appellate review; it is civil proceeding brought to test legality of restraints on person. <bold>2. Criminal Law — Post-Conviction Relief — Findings of Fact</bold> In determining whether imprisonment is unlawful, superior court considering habeas corpus petition must, upon request, make adequate findings of fact. <bold>3. Criminal Law — Parole Revocation — Due Process</bold> Where superior court made brief conclusory statement that Parole Board complied with due process standards for parole violation hearings as defined in <italic>Morrissey</italic> v. <italic>Brewer,</italic> <cross_reference>408 U.S. 471</cross_reference> (1972), supreme court was unable to<page_number>Page 23</page_number> determine facts presented to Board which demonstrated that those standards were met.

<bold>1. Civil Procedure — Summary Judgment — Generally</bold> Summary judgment procedure of D.C.C.R. 56 pierces pleadings to separate form from substance in disputes before trial court, helps to defeat delay and sham, and to relieve pressure upon court dockets; however, because of its severe consequences, summary judgment should be granted cautiously so that no one will be improperly deprived of trial of disputed factual issues. <bold>2. Civil Procedure — Summary Judgment — Facts Not In Dispute</bold> To preserve parties' right to trial, party moving for summary judgment must demonstrate that facts underlying all relevant legal questions raised by pleadings or otherwise are not in dispute, or else summary judgment will be denied notwithstanding that nonmoving party has introduced no evidence. <bold>3. Civil Procedure — Summary Judgment — Responsive Affidavits</bold> Where plaintiff adequately supported his motion for summary judgment with affidavits in support of each contested averment in his complaint, and defendant submitted no responsive affidavits as required by D.C.C.R. 56(e), trial court did not err in awarding summary judgment on plaintiff's claim. <bold>4. Civil Procedure — Summary Judgment — Discretion of Trial Court</bold> Trial court may exercise its legal discretion and refuse to grant summary judgment even though legal standard appears to have been satisfied; however,<page_number>Page 117</page_number> to win reversal on appeal on grounds that trial court abused its discretion in failing to deny summary judgment, defendant must show that trial court's failure to act was unreasonable. <bold>5. Civil Procedure — Relief From Judgments — Excusable Neglect</bold> Because defendant failed to demonstrate that his failure to submit affidavits in response to plaintiff's motion for summary judgment was "excusable neglect" contemplated by V.R.C.P. 60(b), trial court's refusal to grant relief from summary judgment was proper.

<bold>1. Zoning — Appeal to Superior Court — Interested Person</bold> To appeal under <cross_reference>24 V.S.A. § 4471</cross_reference>, which provides for appeals to superior court of decisions of zoning boards of adjustment, appellant must be interested person as defined in <cross_reference>24 V.S.A. § 4464</cross_reference>(b). <bold>2. Zoning — Appeal to Superior Court — Interested Person</bold> To appeal decision of zoning board of adjustment to superior court, developers who had sought permit for conditional use approval to build condominium hotel complex were required to meet statutory test of "interested person," i.e., person owning title to property affected by bylaw who alleges that regulation imposes unreasonable restrictions of present or potential use. <bold>3. Zoning — Appeal to Superior Court — Standing</bold> Corporation which sought zoning permit for conditional use approval to build condominium hotel complex was not person owning title to property affected by bylaw and thus was not "interested person" with standing to pursue appeal in superior court under 24 V.S.A. §§ 4464(b), 4471; superior court should have dismissed appeal.

<bold>1. Motor Vehicles — Operation Under the Influence — Elements</bold> To convict defendant of crime of operating motor vehicle under influence of intoxicating liquor, State has burden to prove beyond reasonable doubt that accused: (1) was operator of motor vehicle; (2) was operating motor vehicle on public highway; and (3) was under influence of intoxicating liquor at time of operation. <bold>2. Motor Vehicles — Operation Under the Influence — Time of Op-</bold> <bold>eration</bold> In trial for DUI, proof of time of operation is not essential if there is other reliable evidence indicating operation while intoxicated.<page_number>Page 136</page_number> <bold>3. Motor Vehicles — Operation Under the Influence —</bold> <bold>Circumstantial Evidence</bold> Given impaired condition of defendant when investigating officer arrived, physical indications of erratic driving and that accident had occurred short time before report was received by police and officer's arrival at scene, jury could have concluded that defendant had been driving under influence as he approached accident site; evidence was sufficient to support guilty verdict without resorting to impermissible inferences. <bold>4. Criminal Law — Argument of Prosecutor — Statement of</bold> <bold>Evidentiary Fact</bold> Statement of evidentiary fact by counsel during final argument which is not true can never be within permissible bounds even though it is honest mistake; however, one claiming impropriety during argument must immediately interpose objection. <bold>5. Criminal Law — Argument of Prosecutor — Failure to Object</bold> Although prosecutor made erroneous statement of evidentiary fact in closing argument, defendant's failure to interpose timely objection to prosecutor's remarks precluded further review on appeal since remarks did not rise to level of plain error under V.R.Cr.P. 52(b).

<bold>1. Contracts — Statute of Frauds — Complete Performance by One</bold> <bold>Party</bold> Under Statute of Frauds, <cross_reference>12 V.S.A. § 181</cross_reference>(4), agreement not to be performed within one year from making thereof must be evidenced by writing signed by<page_number>Page 243</page_number> party to be charged; exception followed by majority of jurisdictions and by Vermont is that complete performance by one of the parties to alleged oral agreement takes agreement out of one-year provision of Statute of Frauds. <bold>2. Contracts — Statute of Frauds — Complete Performance by One</bold> <bold>Party</bold> Purpose of Statute of Frauds is to prevent party from being compelled, by oral and perhaps false testimony, to be held responsible for agreement he claims was never made; where plaintiff fully performed his obligations under oral agreement with defendant's decedent by lending decedent $5,000 and thereby changed his position in manner which prejudiced himself, one-year provision of Statute of Frauds did not prevent plaintiff from proving existence of contract by parol evidence.

<bold>1. Appeal and Error — Interlocutory Review — Constitutional</bold> <bold>Questions</bold> Where trial court denied defendant's motion to dismiss criminal complaint and defendant raised constitutional challenge to statute, interlocutory review was not inappropriate since parties had stipulated to factual context within which certified question arose. <bold>2. Constitutional Law — Void-for-Vagueness Doctrine — Elements</bold> Void-for-vagueness doctrine stresses two aspects: (1) fair warning to potential offenders that their conduct is proscribed; and (2) sufficiently precise standards to avoid arbitrary and discriminatory enforcement. <bold>3. Constitutional Law — Void-for-Vagueness Doctrine — Lewd and</bold> <bold>Lascivious Behavior</bold> Where defendant was prosecuted under <cross_reference>13 V.S.A. § 2601</cross_reference> for lewd and lascivious behavior based on charge that he exposed himself to three young girls between ages of 11 and 14 from window of his house as they were walking home from school, defendant was not being prosecuted for mere nudity since facts revealed that he intentionally drew attention to himself before exposing himself; thus, statute was upheld against vagueness challenge based on contention that terms "lascivious" and "lewd" are not defined.

<bold>1. Criminal Law — Argument of Prosecutor — Curative Instructions</bold> <bold>to Jury</bold> While improper remarks in closing argument can in many cases be corrected by curative instructions, circumstances of each case govern its merits; final inquiry is whether defendant's rights were so injuriously affected as to deprive him of fair trial. <bold>2. Criminal Law — Argument of Prosecutor — Insanity Defense</bold> In trial for sexual assault, where State stipulated to fact that defendant, Vietnam veteran, suffered from post traumatic stress syndrome (PTSD), argument of prosecutor that defendant's defense of insanity was mere attempt to escape justice was improper and prejudicial, and should have been addressed by trial court upon defendant's timely objection to preserve his right to fair trial before impartial jury. <bold>3. Appeal and Error — Evidence — Specific Ground of Objection</bold> In trial for sexual assault, where defendant, in response to testimony elicited by prosecutor that rapists typically claim either consent or amnesia, objected on grounds of "overbroad generalities, no specific application to this case," this objection was sufficient to preserve issue of relevance for appeal. <bold>4. Appeal and Error — Evidence — Waiver of Objection</bold> Since defendant's initial objection to testimony elicited by prosecutor was sufficient to preserve issue of relevance for appeal, under V.R.Cr.P. 51 defendant was not required to make subsequent objection to same legal point; thus, defendant did not waive his objection by failing to take exception to testimony of State's third expert. <bold>5. Evidence — Doctrine of Curative Admissibility — Application of</bold> <bold>Rule</bold> Doctrine of curative admissibility, which operates to prevent one party from successfully gaining exclusion of inadmissible evidence and then extracting selected<page_number>Page 476</page_number> pieces of this evidence for his own advantage, without opposing party being able to place them in their proper context, is intended to allow other party to explain or meet evidence which was improperly admitted, and should be applied only to extent necessary to remove any unfair prejudice which might otherwise have ensued from original evidence. <bold>6. Evidence — Relevancy — Doctrine of</bold> <bold><italic>Res Inter Alios Acta</italic></bold> Evidentiary doctrine of <italic>res inter alios acta</italic> expresses general rule that acts and declarations of strangers to parties are either irrelevant or, if relevant, unfairly prejudicial and should be excluded. See V.R.E. 403. <bold>7. Evidence — Profile or Syndrome Evidence — Admissibility</bold> Profile or syndrome evidence is evidence elicited from expert that person is member of class of persons who share common physical, emotional, or mental condition. Expert witness is typically asked to describe general phenomena and characteristics of condition at issue, and to give his opinion that person is suffering from such condition. In order for this testimony to be admissible, condition must be one that is generally recognized in field. <bold>8. Evidence — Profile or Syndrome Evidence — Rapists</bold> In trial for sexual assault, where three psychiatrists testified that rapists they interviewed commonly claimed consent or amnesia, obvious inference being that defendant, who made both these arguments, was not to be believed, psychiatrists' testimony did not constitute profile or syndrome evidence since it did not concern physical, emotional, or mental condition that could arguably support profile diagnosis recognized by experts in field; this testimony did not provide jurors with explanation as to why most rapists make theses claims, it simply cast doubt on defendant's credibility. <bold>9. Evidence — Relevancy — Unfair Prejudice to Accused</bold> In trial for sexual assault, testimony of three psychiatrists stereotyped defendant as one whose explanations were not to be believed because they were explanations typically offered by psychiatric patients accused of rape, and resulting prejudice to defendant was obvious since jury could have concluded that this rapist was like all other rapists and rejected defendant's insanity defense not because of evidence before it but because "he fit the mold." <bold>10. Appeal and Error — Harmless Error — Burden of Proof</bold> Harmless error analysis requires reviewing court to inquire if, absent alleged error, it is clear beyond reasonable doubt that jury would have returned guilty verdict regardless of error; burden is cast on party not prejudiced by error to show that it was harmless. <bold>11. Criminal Law — Sexual Assault — Prosecutorial Misconduct</bold> In trial for sexual assault, where prosecutor argued in closing that defendant's insanity defense was merely scheme to escape justice, and three psychiatrists were allowed to give prejudicial testimony that rapists they interviewed commonly claimed consent or amnesia, jury's verdict of guilty was tainted by<page_number>Page 477</page_number> prosecutorial misconduct in closing argument or evidence which was improperly admitted and thereafter stressed by prosecution.