State v. Bazinet

• Decision Date: 29 April 1977
• Citation: 372 A.2d 1036
• Parties: STATE of Maine v. Alfred J. W. BAZINET.
• Court: Maine Supreme Court

Page 1036

372 A.2d 1036

STATE of Maine v. Alfred J. W. BAZINET.

Supreme Judicial Court of Maine.

April 29, 1977.

Thomas E. Delahanty, II, Dist. Atty., Richard L. Trafton, Legal Intern, Auburn, for plaintiff.

Gary Goldberg, Jack H. Simmons, Berman, Berman & Simmons, P. A., Lewiston, for defendant.

Before POMEROY, WERNICK, ARCHIBALD and GODFREY, JJ.

GODFREY, Justice.

After a trial by jury, appellant was convicted of the rape of a fifteen-year-old girl. Asserting that three substantial errors were committed during the trial, he seeks a reversal of the judgment.

I

The State attempted to establish that the crime occurred on a particular patch of muddy ground in the undergrowth abutting a school driveway in Lewiston. In addition to the victim's testimony, the State presented that of a physician who had examined her shortly after her attack. After testifying that she had found signs of intercourse with trauma, the doctor stated that she had observed three patches of mud on the girl's right leg. Over defense objections the court then admitted a photograph in evidence which showed the girl's right leg and the mud thereon. Because this photograph had been marked with three small arrows drawn in ink and pointing toward the mud patches observed by the doctor, the appellant argues that the court erred in admitting the photograph because it gave undue prominence to evidence prejudicial to his case.

When questioned about the photograph, the doctor testified that she herself had taken the picture in the course of examining the victim. She stated that the photograph fairly depicted what she had seen and that its use at trial would be of aid in explaining her observations to the jury. She further testified that it had been a nurse, acting under her express instructions, who inserted the small arrows shortly after the picture was taken.

The admission in evidence of photographs is best left to the sound discretion of the presiding justice. State v. Rollins, 295 A.2d 914 (Me.1972); State v. Duguay, 158 Me. 61, 178 A.2d 129 (1962). Although it is generally preferable that photographs to be introduced as evidence not be marked upon, we find no abuse of discretion in the trial court's ruling. The photograph was merely cumulative evidence corroborating the testimony of two prior witnesses. The presence of the arrows was explained by the person responsible for their insertion. The arrows were unobtrusive and did no more than point out what was apparent from the photo itself. In no way did they distort or obliterate relevant portions of the picture. Had the arrows not been inserted, it would have been proper for the doctor to point out the particular mud patches to the jury at trial. We find no prejudice to the defendant by the admission in evidence of the marked photograph.

II

At approximately 5:30 p. m. on November 19, 1975, the second day of the four-day trial, the unsequestered jury was sent home for the evening. There then ensued a long and, at times, heated bench conference concerning the admissibility of certain test results contained in an F.B.I. report. Although defense counsel had asked that the conference be held in chambers, it was held in the open courtroom where various representatives of the press were present.

The following morning a local newspaper published an article about the trial that included a discussion of the bench conference of the evening before. The article accurately reported that there was evidence contained in an F.B.I. report which was inadmissible and would not be seen by the jury. The same morning, in chambers, defense counsel requested the trial judge to voir dire the jury for potential prejudice arising from the article. It is the presiding justice's refusal to conduct such a voir dire and his subsequent denial of a motion for mistrial which the appellant raises as his second point on appeal.

In his brief the appellant properly observes that once a juror has been exposed to potentially prejudicial extraneous information, the trial court must make appropriate inquiry to insure that the fairness of the trial has not been compromised. Once the possibility of prejudice has been established, a presumption arises that the verdict was thereby affected. State v. Kelley, 357 A.2d 890 (Me.1976); see also Simmons v. State, 222 A.2d 366 (Me.1966). In such a case, failure to conduct a voir dire or, in the absence of appropriate inquiry, the subsequent failure to grant a mistrial would generally be ground for reversal.

However, in the cases cited above, the presumption of prejudice and resulting duty of the trial court to voir dire the jury arose only after a finding had been made that potential prejudice existed. In the present case, the court expressly determined that the article in question did not contain information potentially prejudicial to the defense.

To sustain the appeal in this case we would have to reach one of two conclusions: either that the presiding justice erred in finding no potential prejudice or that, as a matter of law, the mere publication of extraneous information during trial in itself creates a possibility of prejudice which in turn, under the cases cited above, raises a presumption of actual prejudice and the duty to voir dire or grant a mistrial.

The latter alternative must be rejected. To mandate a voir dire even when the information hypothetically presumed to be prejudicial is in fact plainly innocuous would waste time and insult the intelligence of court, counsel and jurors. Indeed, the unnecessary polling of jurors might give undue emphasis to unimportant matters. See Gordon v. United States, 438 F.2d 858, 872 n. 39 (5th Cir. 1971), cert. denied, 404 U.S. 828, 92 S.Ct. 139,30 L.Ed.2d 56 (1971).

The fair, efficient and intelligent administration of justice requires that a trial judge be empowered to make a threshold inquiry into whether potential prejudice exists. See Rioux v. Portland Water District, 132 Me. 307, 170 A. 63 (1934). If none is found the trial should proceed. Only when potential prejudice is determined to exist should the presumption of actual prejudice arise and the duty of the court to voir dire attach.

The issue to be resolved in this appeal, therefore, is whether the trial justice erred in finding no potential prejudice. The newspaper article in question, which has been made part of the record on appeal, must be placed in proper perspective. First, the reported colloquy between counsel the night before had resulted in a stipulation providing for the admission in evidence of portions on the F.B.I. report. Thus, part of the...