Harnish v. State

• Decision Date: 08 October 1987
• Citation: 531 A.2d 1264
• Parties: Ronald A. HARNISH v. STATE of Maine.
• Court: Maine Supreme Court

Page 1264

531 A.2d 1264

Ronald A. HARNISH v. STATE of Maine.

Supreme Judicial Court of Maine.

Argued May 8, 1987.

Decided Oct. 8, 1987.

Wayne R. Loote (orally), Paul W. Chaiken, Rudman & Winchell, Bangor, for plaintiff.

James E. Tierney, Atty. Gen., Wayne S. Moss (orally), Asst. Atty. Gen., Augusta, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, GLASSMAN, SCOLNIK and CLIFFORD, JJ.

McKUSICK, Chief Justice.

This appeal presents a question novel for this court: What showing must the State make under article I, section 10 of the Maine Constitution to defeat the right of a person indicted for a capital offense ¹ to have reasonable bail set pending trial? On appeal from the denial of his petition for writ of habeas corpus, Ronald A. Harnish, who has been indicted for murder, contends that due process permits a court to deny him pretrial bail only upon clear and convincing evidence of his guilt. We disagree. We hold that article I, section 10 and established principles of due process require only a showing of probable cause to defeat Harnish's claim that he is constitutionally entitled to bail as of right. Since the standard applied to deny Harnish bail was higher than the probable cause standard, we affirm the denial of Harnish's petition for habeas corpus.

On November 4, 1986, Harnish was indicted for knowing and intentional murder. At the conclusion of a bail proceeding held on November 10, 1986, a justice of the Superior Court (Penobscot County) denied Harnish admission to bail, finding that the State had shown a "high likelihood of conviction for murder." Harnish subsequently filed a petition for writ of habeas corpus, which was heard by a single justice of the Supreme Judicial Court. That justice on December 30, 1986, denied Harnish's petition, holding that article I, section 10 of the Maine Constitution requires only a showing that "a reasonable jury could be convinced beyond a reasonable doubt of the defendant's guilt." On appeal Harnish contends that denial of the constitutional right to bail on proof by anything less than "clear and convincing evidence" deprives him of the due process guaranteed by the Maine and United States Constitutions.

I.

A.

Article I, section 10 of the Maine Constitution, adopted by amendment in 1838, ² provides that:

No person before conviction shall be bailable for any of the crimes which now are, or have been denominated capital offenses since the adoption of the Constitution, when the proof is evident or the presumption great, whatever the punishment of the crimes may be.

In Fredette v. State, 428 A.2d 395 (Me.1981), we addressed the issue of the right to bail of a person convicted of murder. In Fredette we did not consider what standard of proof must be satisfied under article I, section 10 to deprive a person indicted for a capital offense of his constitutional right to bail.

We conclude that the State's showing of probable cause defeats a capital defendant's constitutional right to bail. Probable cause for this purpose, as for other purposes, is defined as

facts and circumstances ... sufficient to warrant a prudent man in believing that the [accused] had committed or was committing an offense.

Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 862, 43 L.Ed.2d 54 (1975). As originally adopted in 1819 (and preserved in substance by the amendment of 1838), article I, section 10 constitutionalized the Massachusetts bail practice. ³ By that established practice, probable cause was the standard for detaining without bail a person accused of a capital offense. See Commonwealth v. Trask, 15 Mass. 277 (1818); D. Davis, Criminal Justice 177 (3d ed. 1853). The Massachusetts practice, by which the grand jury's return of an indictment for murder by itself rendered the defendant nonbailable, was consistent with the long-standing practice in England. See Lord Mohun's Case, 91 Eng.Rep. 96, 1 Salk. 104 (1696) ("If a man be found guilty of murder by the coroner's inquest, we sometimes bail him, because the coroner proceeds upon depositions taken in writing which we may look into. Otherwise, if a man be found guilty of murder by a grand jury; because the Court cannot take notice of their evidence, which they by their oath are bound to conceal").

The bail statutes in the first years of Maine's statehood show that legislators and judges of that era understood article I, section 10 to work no change in the Massachusetts bail practice, and thus reinforce our determination that after a judicial finding of probable cause that the accused has committed a capital offense, he has no constitutional right to bail. Article X, section 3 of the Maine Constitution caused Massachusetts bail statutes (and all other Massachusetts statutes) "not repugnant to this Constitution ... [to] remain, and be in force, until altered or repealed." In 1820 the legislature created a "Board of Jurisprudence," consisting of the three justices of the Maine Supreme Judicial Court, ⁴ to review the Massachusetts statutes and to compile all the laws then in force in Maine. ⁵ Silsby, "History of Statutory Law in the State of Maine," vol. 1 M.R.S.A. 6-18 (1985). In 1821 the legislature reenacted those laws essentially without change. Id. Those first Maine statutes regarding bail established

[t]hat it shall be within the power, and be the duty of every Justice of the Peace within his county ... to examine into all homicides, murders, treasons, and felonies done and committed in his county, and commit to prison all persons guilty, or suspected to be guilty of manslaughter, murder, treason or other capital offence; ... and to hold to bail all persons guilty or suspected to be guilty of lesser offences which are not cognizable by a Justice of the Peace; ....

1821 Me.Laws ch. 76, § 1 (reenacting Mass.St.1783, ch. 5, para. 1). The statute pertaining to habeas corpus required the court to bail before trial only petitioners detained for a "bailable" offense (if sufficient bail be offered). See 1821 Me.Laws ch. 64, § 5 (reenacting Mass.St.1784, ch. 72, para. 5.) A bailable offense was any offense other than those punishable by death or those for which bail was "prohibited or restrained by particular statutes." D. Davis, Criminal Justice 170-71. However, probable cause was required to hold without bail even a person accused of a capital offense [A]ny person who shall be held in prison upon suspicion of having committed a crime for which he may have sentence of death passed upon him, shall be bailed or discharged, if he is not indicted at the second term of the sitting of the Supreme Judicial Court in the county where the crime is alleged to have been committed, when there are two terms a year in such county.

1821 Me.Laws ch. 59, § 44 (reenacting Mass.St.1784, ch. 72, para. 12).

The substance of those bail laws survived thorough scrutiny in the course of the first major revision of Maine statutes. ⁶ Chapter 171 of the Revised Statutes of 1841 provided specifically that:

If, on examination [by a magistrate], it shall appear on the whole evidence that no offence has been committed, or that there is not probable cause for charging the prisoner with an offence, he shall be discharged.... But, if it shall appear that an offence has been committed, and that there is probable cause to believe the prisoner to be guilty, and if the offence be bailable by such magistrate, and sufficient bail be offered, it shall be taken, and the prisoner discharged; but, if the offence is not bailable by the magistrate, or no sufficient bail be offered, the prisoner shall be committed to prison to await a trial.

R.S. ch. 171, §§ 16, 17 (1841). Section 22 of that chapter described the power of magistrates to bail:

Any justice of the supreme judicial court or district court, or any two justices of the peace and quorum for any county, on application of any prisoner committed for a bailable offence, or for not finding sureties to recognize for him, may inquire into the case and admit such person to bail.

R.S. ch. 171, § 22 (1841) (emphasis added). See also R.S. ch. 140, § 17 (1841). Capital offenses were not "bailable" of right. Fredette v. State, 428 A.2d at 403. See also R.S. ch. 171, § 9 (1841) (person charged with capital offense not bailable during recess in magistrate's preliminary examination). History thus teaches with more than ordinary clarity that a showing of probable cause that an accused has committed a capital offense could eliminate his constitutional right to pretrial bail.

B.

Even though history demonstrates that probable cause is the constitutional standard for determining the right to bail of one charged with a capital offense, we conclude that the State's burden of showing probable cause should no longer be satisfied by the indictment alone, whatever may have been the rule in an earlier era.

For a number of years many, though by no means all, justices of the Superior Court have followed a practice of independently evaluating the case against a murder indictee to determine whether the proof was evident or the presumption great, to justify holding him for trial without bail. ⁷ Opinions written by the justices following that practice dispel any notion that they viewed an indictment as eliminating without more the necessity for that independent judicial evaluation. See, e.g., State v. Nichols, No. 73-679 (Me.Super.Ct., Cum.Cty., Aug. 23, 1973) (H. Glassman, J.). In addition, article I, section 10 applies to any crimes "which now are, or have been denominated capital offenses since the adoption of the Constitution," a broad category that includes rape and some forms of arson, robbery, and burglary. See n. 1 above. We are not aware that in recent decades any trial judges have taken the position that an indictment for any of those crimes automatically defeats the indictee's constitutional right to bail.

The substance of article I, section 10 as it comes down to us from 1820 requires that we use a probable cause standard...