State v. Bachelder
| Decision Date | 26 June 1979 |
| Citation | 403 A.2d 754 |
| Parties | STATE of Maine v. Calvin BACHELDER. |
| Court | Maine Supreme Court |
David M. Cox, Dist. Atty., Gary F. Thorne, Asst. Dist. Atty. (orally), Bangor, for plaintiff.
Hall & DeSanctis by Julio DeSanctis (orally), Bangor, for defendant.
Before McKUSICK, C. J., POMEROY, ARCHIBALD, DELAHANTY, GODFREY, and NICHOLS, JJ., and DUFRESNE, A.R.J.
1
The evidence did indicate that Napoli's Pizza, located at 622 Hammond Street, in Bangor and operated by the reference corporation had been broken into in the early hours of January 30th with sundry beer, wine and grocery items being taken. Tried by jury in the Superior Court (Penobscot County), the defendant was found guilty as charged. He appeals to this Court from the judgment of conviction which followed. We deny the appeal.
The evidence before the jury disclosed that, at 3:30 a. m. on the morning of January 30, 1978, Officer David Melochick of the Bangor Police Department, while checking the security of Napoli's Pizza, found that the glass door which provided the main entrance to the place had been broken as there was a hole therein approximately 2 1/2 feet in diameter. After making an investigation and notifying the store manager, Melochick left the premises at about 4:30 a. m. Prior to the discovery of the break, the officer had noticed in the general area a four door green Plymouth automobile with a spotlight mounted on the front windshield post on the driver's side, an antenna on the trunk and a symbol of some sort on the upper roof post at the rear of the roof. Shortly after resuming his patrol, the officer spotted the same automobile which had previously caught his attention and proceeded to stop it. Bachelder was at the wheel and one Cauley Connell to whom the car was registered was seated on the passenger side. Bachelder was unable to produce a driver's license, while Connell supplied the registration certificate. The officer asked the defendant if he would mind opening the trunk of the vehicle. Bachelder readily went to the rear of the car, but, after trying two or three of the keys, was unable to open the trunk. On the officer's suggestion, Connell did get it open without difficulty, and, there, in plain view of Officer Melochick, was a large quantity of beer, wine and other food products later identified as merchandise stolen from Napoli's Pizza.
The critical issue for the jury was the resolution of the conflict between the testimony of Connell and the defendant Bachelder. Connell, who had entered into a plea bargain with the State in return for his testimony against the defendant, gave the following account of the burglary. At about 8:00 o'clock in the evening of January 29th he went to the apartment of Bachelder's sister (Cindy) on Hammond Street in Bangor. After drinking and socializing till about 1:00 a. m. in the night he left with Bachelder for Napoli's Pizza where he (Connell) kicked in the glass of the main entrance door and the defendant entered the premises bringing out the beer and other items which he (Connell) loaded in the trunk of the car.
The loot was then taken upstairs to Cindy's apartment. He testified, however, that the defendant did not accompany him on his second and third trips to the then unsecured business establishment. Having returned to the apartment, Connell stated that he later went out, but this time again in the company of Bachelder who took over the driving of the car, in search of a store where they could purchase cigarettes, but their quest was aborted by the confrontation with Officer Melochick. The defendant, on the other hand, taking the stand in his own defense, told a different story which was corroborated by his sister Cindy and two of his friends, Sonya Gordon and Daniel Ward, who were also socializing at the Hammond Street apartment. They testified that Connell left the apartment alone at approximately 2:00 a. m. and returned at about 4:00 a. m., when the defendant agreed to drive him to get cigarettes. Bachelder testified that he did not leave his sister's place until 4:00 o'clock in the morning and had nothing to do with the break at Napoli's Pizza.
Faced with this conflict in testimony, the jury was charged with the task of determining who was telling the truth. On appeal the defendant attacks the conduct of the trial Justice on two separate occasions during the trial as being in derogation of his constitutional right to an impartial trial (Constitution of the State of Maine, Article I, Section 6) and in violation of 14 M.R.S.A. § 1105 which prohibits the presiding justice from expressing an opinion upon issues of fact arising in the case. The defendant contends that the Justice's alleged improper conduct, when viewed either singly or together, constituted reversible error, because, so he claims, it tended to prejudice the jury on the issue of credibility. We disagree.
The first incident occurred when defense counsel was examining defense witness, Cindy Bachelder, the defendant's sister. She testified that, on the morning of her brother's arrest, she and her friend Sonya discovered at least eight or ten cases of beer in and around the large metal trash disposal container available at ground level to the tenants of the multiple housing unit in which she lived. She stated that the beer, with other items such as meats and olives, were all toted by herself and her friend Sonya to her apartment on the top floor of the eight-tenement building. She maintained she had no idea "where it come from." The beer was later identified as merchandise stolen from Napoli's Pizza. To clarify her testimony regarding the beer, the presiding Justice carried the following colloquy with Miss Bachelder:
Q. "When you're talking about cases of beer, you're talking about a six-pack of beer or talking about a case that has 4 6-packs in it; do you know?"
A. "I'm talking about 4 6-packs."
Q. "A case with 4 6-packs, about 24 bottles of beer in it?"
A. "Yeah."
Q. "And they were cardboard cartons?"
A. "Yeah, there was a couple of boxes."
After defense counsel brought out that Cindy could carry by herself a case of beer up to the apartment at the top floor of the building and that Sonya and herself had carried all the beer to the apartment and that it took about an hour to do so, the Justice again interrupted and asked two questions, to which the defendant takes offense:
Q. "When were you planning to move out that day?"
A. "Oh, in between probably eight and two, whenever we got out, early morning."
Q. "But you brought eight or nine or ten cases up to the top floor of the building to the apartment you were going to move out of?"
A. "Uh-hum."
We note that defense counsel neither raised objection at the time, nor at the completion of the cross-examination of Miss Bachelder. His motion for mistrial was made to the Court following a lengthy examination and cross-examination of Daniel Ward, another defense witness. No cautionary or explicative instruction in respect thereto was ever requested.
The second incident of misconduct on the part of the trial Justice which the defendant asserts deprived him of a fair trial arose in the following manner. The prosecuting attorney, in his cross-examination of the defendant, had gotten the information that Bachelder had in the past worked at Napoli's Pizza and was very familiar with the layout in the place. With the picture of the broken glass door in hand, the defendant conceded that "a person (the supposed burglar) would have to crawl through (the hole in the glass door), go down to the cooler and go back out." After referring to Connell's condition of intoxication, the State's attorney then asked this question:
"Wouldn't you agree it would be very difficult for a person to crawl through this hole without hurting himself?"
The following colloquy ensued.
(The witness) "A. I don't know how he could have.
You just say you admit it would be very difficult for him to carry out 10, 20 cases of beer, whatever the amount was.
And you deny his statement that he stood outside and you handed the beer to him through that hole?
which motion was denied. No request for an immediate or later explanatory instruction was made.
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