Heald v. Mullaney

• Citation: 505 F.2d 1241
• Decision Date: 10 September 1974
• Docket Number: No. 74-1171,74-1171
• Parties: Augustus F. HEALD, Petitioner-Appellant, v. Garrell S. MULLANEY, Warden, Maine State Prison, et al., Respondents-Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1241

505 F.2d 1241

Augustus F. HEALD, Petitioner-Appellant, v. Garrell S. MULLANEY, Warden, Maine State Prison, et al.,

Respondents-Appellees.

No. 74-1171.

United States Court of Appeals, First Circuit.

Heard Sept. 10, 1974.

Decided Nov. 13, 1974, Certiorari Denied Feb. 24, 1975, See

95 S.Ct. 1339.

Peter L. Murray, Portland, Me., by appointment of the Court, with whom Murray, Plumb & Murray, Portland, Me., was on brief, for petitioner-appellant.

John W. Benoit, Jr., Deputy Atty. Gen., Augusta, Me., for respondents-appellees.

Before COFFIN, Chief Judge, MOORE, Senior Circuit Judge, ^* and CAMPBELL, Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Augustus F. Heald appeals from a denial by the district court of his petition for writ of habeas corpus. Heald is serving a sentence imposed by the Penobscot County, Maine, Superior Court, after his conviction by a jury as an accessory before the fact to an armed robbery. The only issue on appeal arises from the state trial judge's instruction that the jury make special findings in the event of a not guilty verdict. While disapproving the instructions, the Maine Supreme Judicial Court rejected Heald's contention that the error was of constitutional dimension or required reversal of the conviction. State v. Heald, 307 A.2d 188 (Me.1973). The district court agreed. We affirm.

Heald was tried on two indictments, one charging him as an accessory before the fact, and another as accessory after the fact, to a robbery committed on September 16, 1970, by Robert Frazier. The state's case was exceedingly strong. The assistant manager of the Nite-Owl store in Brewer, Maine, testified that he was held up on the evening of September 16 by two men whom he identified in court as John Hanson and Robert Frazier. The latter held a pistol while Hanson collected the cash. Hanson, Frazier and Frazier's brother, Harley, were prosecution witnesses. Hanson and Frazier admitted to the robbery, and all three testified to substantially the following: They had met on the sixteenth at appellant Heald's house in Belfast, Maine. In company of Heald and his woman companion, they drove around in a car drinking. Robert Frazier and Heald discussed robbery, and Heald said he knew of a small place to rob, directing them to the Nite-Owl, which they drove by. Heald handed Robert Frazier a gun. They parked near but out of sight of the Nite-Owl, and Frazier and Hanson left the car, returning after having committed the robbery. While they were gone, the others including Heald waited inside the car. Later the robbers divided with Heald part of $385 seized from the store.

The defense concentrated on trying to undermine the credibility of the state's witnesses. No alibi or other evidence contradicting the state's version was later presented.

When the state rested, Heald moved for a judgment of acquittal on both indictments. Concerning the charge of accessory before the fact, Heald's counsel argued that if the state's evidence was believed, it showed that Heald was a principal, not an accessory. A principal, Heald argued, could not be convicted under an indictment charging him as an accessory.

The court denied the motion, although for technical reasons not germane here it later dismissed Heald's indictment as an accessory after the fact. The case went to the jury on the remaining indictment; and the court, in its charge, accepted the defense theory that if Heald was, in fact, a principal he must be acquitted. The court explained at length to the jury the distinction between accessory and principal. It pointed out that an accomplice who is actually present at a crime is a principal, whereas an absent person who counsels or procures the commission of a crime is an accessory. Additionally, the court explained that an accomplice who is 'constructively' but not actually present may be a principal. Under Maine law, as at common law, one standing by to render assistance (a lookout, for example) is constructively present, hence a principal. Heald, it was clear, was not actually present; but there was a question whether his proximity in the getaway car made him a principal because of constructive presence.

After the judge had explained these rather complicated rules, he told the jury that it must acquit Heald if it found him to be a principal. ¹ The court then told the jury ² that because of the peculiar nature of the case, it was to make special findings in the event of a not guilty verdict. The jury was to answer 'Yes' or 'No' to two written questions. The first was whether it found the defendant not guilty 'only because he was constructively present at the scene of the crime.' The second was whether its finding of innocence was 'based upon the fact that the State failed to prove the elements of the crime of accessory before the fact beyond a reasonable doubt.' These questions, appellant says, were constitutional error.

After the charge, Heald objected to 'recording a verdict in special findings, a special verdict.' The jury began its deliberations at 12:25, recessed for lunch from 12:35 to 2:05, and at 3:45 requested the judge to repeat his instructions as to principal and accessory. This was done, and the jury again retired at 4:12, returning at 4:20 with a guilty verdict.

Heald argues that any use of special verdicts and special questions in criminal cases is so alien to the Anglo-American tradition of trial by jury as to deny due process of law under the fourteenth amendment. ³ He says that to require a jury to particularize or explain its general verdict of 'guilty' or 'not guilty' must inevitably undermine its independence. The instant case is said to be especially bad because a special finding was required only in the event of a 'not guilty' verdict. Heald concludes that once it has been shown that such 'impermissible interference' has occurred an appellate court 'cannot second-guess the jury to determine whether the error was 'harmless".

Our review of appellant's habeas corpus petition is the 'narrow one of due process, and not the broad exercise of supervisory power that we would possess in regard to our own trial court.' DeChristoforo v. Donnelly, 473 F.2d 1236, 1238 (1st Cir. 1973), rev'd on other grounds, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). We must decide whether putting the special questions here-- an action conceded to be error under Maine criminal procedures ⁴ -- deprived Heald of 'that fundamental fairness essential to the very concept of justice.' Donnelly v. DeChristoforo, 416 U.S. at 642, 94 S.Ct. at 1871, quoting Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941). We think it did not.

This circuit's views on special questions in a federal criminal case are set forth in United States v. Spock, 416 F.2d 165 (1st Cir. 1969). We held that there was a danger that such questions would 'catechize' a reluctant juror away from an acquittal towards a seemingly more 'logical' conviction. Yet

'the jury, as the conscience of the community, must be permitted to look at more than logic . . .. If it were otherwise there would be no more reason why a verdict should not be directed against a defendant in a criminal case than in a civil one. The constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly.' Id. at 182.

Spock is in accord with general disapproval of special questions and verdicts in federal criminal cases. The third circuit wrote in 1946,

'Special verdicts in criminal cases were not unknown at common law in England at the time of the adoption of our Constitution . . .. They have, however, become virtually unknown known in federal criminal practice . . .. No provision for them is made in the Federal Rules of criminal Procedure.' United States v. Noble, 155 F.2d 315, 317 n. 4 (1946).

See also Gray v. United States, 174 F.2d 919 (8th Cir.), cert. denied, 338 U.S. 848, 70 S.Ct. 90, 94 L.Ed. 519 (1949); United States v. Adcock, 447 F.2d 1337 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 278, 30 L.Ed.2d 252 (1971); United States v. James, 432 F.2d 303 (5th Cir. 1970), cert. denied, 403 U.S. 906, 91 S.Ct. 2214, 29 L.Ed.2d 682 (1971); United States v. McCracken, 488 F.2d 406 (5th Cir. 1974). ⁵ The only circuit to express a contrary view in recent years did so in dicta which may not reflect full consideration. Fuller v. United States, 132 U.S.App.D.C. 264, 407 F.2d 1199, 1231 n. 47 (1968). There is precedent, however, even within the federal judicial system for a limited use of special jury findings, usually in connection with sentence: a jury could be asked to determine whether the death penalty is to be imposed or whether the value of stolen property was more or less than $100. See generally 2 Wright, Federal Practice and Procedure 512 (1969); Spock, supra, 416 F.2d at 182 n. 41.

The states generally decline to permit special verdicts and questions in criminal proceedings, although there are exceptions. See, e.g., State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964) (separate verdicts on issues of paternity, non-support, and guilt utilized in criminal bastardy proceedings); Cal.Penal Code 1150 et seq.

Viewed against this background we do not believe that a mechanical per se rule of unconstitutionality is warranted for all special questions in criminal cases. In Spock we were exercising our supervisory powers and, therefore, did not have to reach constitutional ground. 416 F.2d at 180. To be sure, Spock condemned special questions in terms of their effect upon the independence of juries, a ground going to the institutional integrity of juries and having plain constitutional implications. See note 3 supra. We have little doubt that, in general, the use of special questions and verdicts in any criminal proceeding, state or federal, is suspect not only as a matter of sound judicial policy but of due process as well.

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