Bennett v. State

• Court: Maine Supreme Court
• Writing for the Court: Before WILLIAMSON; DUFRESNE
• Citation: Bennett v. State, 214 A.2d 667, 161 Me. 489 (Me. 1965)
• Decision Date: 18 November 1965
• Parties: Otto BENNETT v. STATE of Maine et al.

Page 667

214 A.2d 667

161 Me. 489

Otto BENNETT v. STATE of Maine et al.

Supreme Judicial Court of Maine.

Nov. 18, 1965.

Frank F. Harding, Rockland, for petitioner.

John W. Benoit, Asst. Atty. Gen., Augusta, for respondents.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, RUDMAN and DUFRESNE, JJ.

DUFRESNE, Justice.

On appeal from discharge of the writ of habeas corpus by a single justice.

Otto Bennett was indicted, tried and convicted, at the October term, 1960, of the Superior Court for Knox County. His exceptions (1) to the denial of his motion for a directed verdict, (2) to 13 allegedly erroneous rulings on evidence and (3) to part of the charge, were overruled by this Court. State v. Bennett, 158 Me. 109, 179 A.2d 812 (1962).

Incarcerated in State prison in pursuance of sentence received in those proceedings, Bennett sought further relief from the federal courts on the grounds that his conviction was not supported by sufficient credible evidence. This attack fizzled in the Circuit Court of Appeals. Bennett v. Robbins, 1 Cir., 329 F.2d 146, 147 (March 16, 1964).

Bennett's subsequent extramural endeavor 3 months later sought the issuance of the writ of habeas corpus in our Superior Court. The writ issued, full hearing ensued and Bennett now appeals from the denial of relief and from the discharge of the writ by the single justice who found the petitioner's multiple lateral attacks on the Court's original judgment without legal avail.

Bennett's present grievances are listed under 9 separate topics, the last of which, nomenclated incompetency of counsel, is subdivided into 11 accusations directed at his trial attorney's conduct.

These alleged trial errors noted in the bill of grievances and within the statement of points on appeal may be succinctly expressed as follows: (1) variance between the date of the offense as specified in the indictment and the date borne out by the evidence; (2) nonadmission into evidence of respondent's exhibit #1, a so-called employment chart, after court had deferred ruling on its admissibility, when in fact there was no further request for a ruling thereon or move for later admission; (3) alleged prejudicial remark of the presiding justice about testimony; (4) alleged prejudicial remark of the presiding justice to defense counsel; (5) alleged prejudicial argument by state counsel; (6) disqualification of 2 jurors, (a) Chester Leonard who was first cousin to Carlisle Leonard, the said Carlisle Leonard's wife being a sister to the prosecutrix's mother and (b) Simon Hamalainen, the other juror who was the son-in-law and employee of Rivers Emil, the owner of Rivers Emil Incorporated, with which corporation the prosecutrix's father had done business in the past; (7) inconsistency of prosecutrix's testimony with her prior statements under oath; (8) state counsel's knowing use of prosecutrix's alleged perjured testimony.

None of these alleged trial errors were objected to at the trial level, nor were they submitted for review on appeal. All were considered and found legally wanting by the single justice, either in law or in fact and law.

Such trial irregularities as consist of variance between the allegata and the probata, or have to do with the admissibility of evidence or may be prejudicial remarks by the trial judge or argument of the prosecutor, are all matters for consideration on appeal and not in post-conviction habeas corpus under M.R.S.A. Title 14, § 5502.

Post conviction habeas corpus is available under the statute 'provided that the alleged error has not been previously * * * waived in the proceeding resulting in the conviction' * * *

Where objections to these alleged trial irregularities were not raised in the trial court, they must be deemed waived, and will not be considered for the first time on appeal. State v. Smith, 140 Me. 255, 37 A.2d 246. None can be classed as 'highly prejudicial' or 'well calculated to result in injustice' or otherwise so fundamentally unfair as to prevent an impartial trial or a true verdict based solely on the evidence and the law applicable thereto, where an exception to the above rule is permitted. State v. Smith, supra.

In State v. Bennett, 158 Me. 109, at page 111, 179 A.2d 812, 814, this Court said:

'But real and spoken evidence and their advantage in observing the principals and witnesses completely vindicate the jurors in their verdict of guilt beyond a reasonable doubt.'

This Court's study of the record did not then, nor does it now, convince us that manifest errors exist and that injustice will result unless these alleged irregularities are examined.

Furthermore, post-conviction habeas corpus, a successor to the writ of error coram nobis, is not an appeal, Dwyer v. State of Maine, 151 Me. 382, 120 A.2d 276, and M.R.S.A. T. 14, § 5502 expressly states that

'the remedy of habeas corpus provided in sections 5502 to 5508 is not a substitute for nor does it affect any remedies which are incidental to the proceedings in the trial court.'

Therefore, these alleged trial irregularities are not properly for our consideration as such.

Petitioner claims, however, amongst these stated trial errors, that 2 of the jurors at his trial were not disinterested and that he was thereby deprived of his constitutional right to be tried by an impartial jury.

Because 'a fair trial is the implicit end, and the very essence of constitutional government,' we will examine the petitioner's charge in this respect.

It is true that

'(i)n all criminal prosecutions, the accused shall have a right * * * to have a(n) impartial trial, * * * by a jury of the vicinity' (Emphasis supplied) Article 1, section 6, Constitution of Maine.

An impartial trial necessitates an impartial jury.

'The administration of justice requires that verdicts, criminal as well as civil, shall be found by impartial juries, and shall be the result of honest deliberations absolutely free from prejudice or bias. The public as well as the accused have rights which must be safeguarded.' State v. Slorah, 118 Me. 203 at page 210, 106 A. 768, at page 771, 4 A.L.R. 1256.

A potentially partial jury will not do.

'To render a verdict void in civil cases it need not appear that the jury was actually prejudiced, biased, or influenced by the occurrence. If it may have affected their ability to render an impartial verdict, it is sufficient. * * * the same considerations should apply in criminal cases whether it might affect adversely the state or the respondent. * * * Both are entitled to a fair trial.' State v. Slorah, supra, at page 211, 106 A. at pages 771, 772.

M.R.S.A. Title 14, § 1301, is declaratory of the common law and has set up the legal machinery at trial whereby the parties may safeguard their constitutional right to an impartial trial by an impartial jury, a fundamental and basic concept of justice under our judicial system.

'The court, on motion of either party in an action, may examine, on oath, any person called as a juror therein, whether he is related to either party, has given or formed an opinion or is sensible of any bias, prejudice or particular interest in the cause. If it appears from his answers or from any competent evidence that he does not stand indifferent in the cause, another juror shall be called and placed in his stead.'

See, International Agricultural Corp. v. Willette, 120 Me. 423, at pages 425, 426, 115 A. 170

By statute a relationship by consanguinity or affinity within the 6th degree according to the civil law, or within the degree of 2nd cousins inclusive, will disqualify a person who is required to be disinterested or indifferent in a matter in which others are interested. M.R.S.A. Title 1, § 71(6).

The rule has been applied to jurors, Lane v. Goodwin, 47 Me. 593, (1860); Hardy v. Sprowle, 32 Me. 310, (1850). In the latter case, our court has said at page 312:

'The law is general, and prescribes the rule of disqualification rigidly, and regardless of the fact whether the juror might or might not be biased by the relationship, in a given case. Without doing injustice to any, it assumes that all, thus related, may be influenced by that consideration, and holds them incompetent to act and decide impartially.'

The basis for the disqualification of a juror because of relationship to one of the parties is the fact that such relationship may influence the juror in his deliberations and decisions. The statute further recognizes that other interests, besides those of relationship, may just as readily subject a juror to possibility of influence establishing disqualification within the statutory concept of sensibility 'of any bias, prejudice or particular interest in the cause;' such may arise of course because of business relations.

However, M.R.S.A., Title 14, § 1303, imposes upon the parties a duty to disclose any known objection under penalty of waiver of the objection.

'If a party knows any objection to a juror in season to propose it before trial and omits to do so, he shall not afterwards make it, unless by leave of court for special reasons.'

Our court has said that

'in season' 'before trial' must mean 'before the termination of the trial.'

'The party cannot keep quiet and speculate upon the chances of a verdict in his favor. He should, at the first opportunity after the discovery is made, make an open disclosure of the fact for the benefit of all concerned.' Brown v. Reed, 81 Me. 158, at page 161, 16 A. 504, at page 505.

In cases where the objection to a juror is his relationship to a party, there is no waiver when the objecting party is not aware of any circumstance affecting the competency of the juror, until after verdict, and the verdict must be set aside. Jewell v. Jewell, 84 Me. 304, 24 A. 858, 18 L.R.A. 473, (1892). Lane v. Goodwin, 47 Me. 593, (1860); Hardy v. Sprowle, 32 Me. 310, (1850).

We have belabored this issue because of the great importance we attach to the constitutional entitlement of a party accused of crime...