Lumsden v. State

• Decision Date: 16 July 1970
• Citation: 267 A.2d 649
• Parties: Joseph E. LUMSDEN, Jr. v. STATE of Maine and Allan L. Robbins, Warden, Maine State Prison.
• Court: Maine Supreme Court

Page 649

267 A.2d 649

Joseph E. LUMSDEN, Jr. v. STATE of Maine and Allan L. Robbins, Warden, Maine State Prison.

Supreme Judicial Court of Maine.

July 16, 1970.

Sewall, Strater, Winton & Hancock, by Frank E. Hancock, York, for plaintiff.

John W. Benoit, Jr., Deputy Atty. Gen., Augusta, for defendants.

Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE and WEATHERBEE, JJ.

DUFRESNE, Justice.

On appeal from denial of petition for the writ of habeas corpus in post-conviction proceedings under 14 M.R.S.A. §§ 5502-5508. The decision of the single Justice is affirmed and the appeal denied.

Lumsden, the petitioner herein, was indicted by the Grand Jury in and for the County of York at the January term, 1969, of the Superior Court for the alleged commission of two separate crimes of attempt to break and enter two different commercial establishments with intent to commit larceny therein. The first indictment, docketed as No. 6414 on the criminal docket and involving the crime at 'Roger's Supa Dolla', so-called, was returned to the Court on January 14, 1969, while the second indictment, docketed as No. 6436 and having reference to the crime at Gagne's Hardware Store, was returned on February 4, 1969. Both crimes were alleged to have been committed on December 28, 1968. No reasons appear in the record why one indictment was returned later in the term than the other. Trial of the second indictment took place on February 12, 1969 resulting in a verdict of guilty as charged. On March 3, 1969 the petitioner retracted his plea of not guilty and entered a plea of guilty to the first indictment and was sentenced to concurrent terms in Maine State Prison of not less than 1 year and not more than 2 1/2 years.

The petitioner's statement of points on appeal raises two issues, 1) whether there was reversible error, cognizable in habeas corpus proceedings, because at trial level he was not given the opportunity to make the election upon which of the 2 indictments he would first be tried, and 2) were both indictments fatally defective for failure to describe the goods which were the subject of the intended larceny and the owners thereof.

Lumsden points to no constitutional or statutory provision in support of an absolute right in the accused to determine the order in which accusations against him may proceed to trial. At common law and as a matter of a general criminal practice the prosecuting attorneys have been given the charge of the criminal docket subject to the supervisory discretionary powers of the court, the order of trial of criminal cases ordinarily resting in the sound discretion of the trial court. See, 23 C.J.S. Criminal Law § 929b.

'It is usual in criminal cases to permit the State to select the indictments on which defendants are to be tried, in case there are several charges, and while the Court may direct the State to proceed on some specific indictment, that is a matter largely within the discretion of the trial court, and is not subject to review unless there is an abuse of this discretion.' Winkler v. State, 1949, 194 Md. 1, 69 A.2d 674, cert. den. 339 U.S. 919, 70 S.Ct. 621, 94 L.Ed. 1343.

In State v. Adcock, 1940, 194 S.C. 234, 9 S.E2d. 730, the trial Court was held not to have abused its discretion in permitting a case pertaining to the keeping of slot machines to be called for trial, after the defendant had sought a continuance on the ground that two cases for violating the liquor laws and for maintaining a nuisance were then pending and defendant was ready to go to trial on one or both of them.

That another case appeared first on the criminal docket was not considered sufficient reason in and of itself for the postponement of the case called for trial, stated the Georgia Court in Griggs v. State, 1926, 35 Ga.App. 663, 134 S.E. 333.

This argument has been raised for the first time in the instant post-conviction proceeding. It was not raised at the time the defendant was called upon to go to trial on the second indictment instead of on the first one. It was not submitted for review on direct appeal. The law will not permit an accused, who is disappointed decause the later of two pending cases is called for trial, to keep his silence, if he has any reasonable ground upon which he may lawfully request that the other case be tried first, take his chances on getting a favorable verdict and, if he loses, at some time later, come into court to void the judgment by raising a point which if timely raised the trial court might have allowed in the exercise of its sound discretion. The error under the circumstances of this case would merely constitute a trial irregularity subject to consideration on appeal but not in post-conviction habeas corpus. Not raised in the trial court this alleged error must be deemed waived and not before us for our consideration. Bennett v. State, 1965, 161 Me. 489, 214 A.2d 667.

However, the defendant in his argument states the orderly administration of criminal justice within the constitutional mandate of speedy trial requirement compels us to decree that this right to elect which of any number of cases pending against a person shall be tried first must be the exclusive privilege of the accused as a matter of fundamental fairness in satisfaction of the modern concepts of due process under the Fourteenth Amendment to the Constitution of the United States and Article 1, Section 6-A of our own Constitution of Maine. We disagree.

In Klopfer v. North Carolina, 1967, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1, the United States Supreme Court held that the Sixth Amendment standards governing speedy trial are made obligatory on the States by the Fourteenth Amendment Due Process Clause. But this constitutional provision is not a grant of power; it does not invest the accused with authority to decide which of his cases should be tried first or when his cases are to be tried, if at all. The constitutional requirement of speedy trial merely provides the accused with protective safeguards against unreasonable delays by the State. The contours of the speedy trial guarantee have not been fully defined as yet in scope and content. See, Concurring Opinion of Mr. Justice Brennan in Dickey v. Florida, May 25, 1970, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26.

In Beavers v. Haubert, 1905, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950, the United States Supreme Court rejected the argument that the constitutional right to a speedy trial attaches and becomes fixed to the accusation first in time and that whatever may be the demands of public justice they must wait. The right to a speedy trial, said the Court, is not so unqualified and absolute. It is necessarily a relative right, consistent with delays and dependent upon circumstances. The Court there ruled that it was...