State v. Berube

• Court: Supreme Judicial Court of Maine (US)
• Writing for the Court: Before DUFRESNE; WEBBER
• Citation: 297 A.2d 884
• Parties: STATE of Maine v. Reginald J. BERUBE.
• Decision Date: 15 December 1972

Page 884

297 A.2d 884 STATE of Maine
v.
Reginald J. BERUBE. Supreme Judicial Court of Maine. Dec. 15, 1972.

Page 885

Richard S. Cohen, Chief, Crim. Div., Malcolm L. Lyons, Asst. Atty. Gen., Augusta, for plaintiff.

Harold J. Shapiro, Jeffrey A. Smith, Gardiner, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

WEBBER, Justice.

Appellant Berube stands convicted of murder. His appeal raises several legal issues for our consideration.

Change of Venue

In the early morning hours of May 9, 1968 Omar A. Goding was brutally murdered at the brickyard in Auburn operated by the corporation of which he was president. This event was the subject of a newspaper account prominently displayed on the front page of the Lewiston Evening Journal of that date. The Lewiston Daily Sun, a morning paper, and the Journal, both having widespread circulation in Androscoggin County, continued their daily coverage of events as they transpired. On May 13, 1968 the Sun was able to report that the appellant and one Turner had been arrested and charged with the murder of Mr. Goding. The Journal of that date reported proceedings in the District Court in which counsel were appointed by the Court and the defendants held without bail for later arraignment. This Journal story carried pictures of the defendants as they arrived in District Court in handcuffs and under police guard. On May 14, 1968 the Journal carried a back page story reporting that on the preceding day the grand jury in Cumberland County had returned an indictment charging Turner with an unrelated break-but there was no reference to appellant in this account. In a separate story on the same page there appeared a brief recapitulation of the arrest and charge. On May 15, 1968 the story had moved to an inside page where it was reported that the probable cause hearing had been continued until May 21, 1968. The Journal of May 16, 1968 described a rumor that arrests had resulted from a 'tip' but the reporter candidly admitted that he had encountered a 'police embargo on information' and was unable to get any prosecuting official to comment. The last news story complained of by appellant appeared on the front page of the Journal on May 21, 1968 and reported the proceedings in the District Court where the defendants

Page 886

were arraigned and bound over after hearing was waived. The story gave particular attention to the 'extreme precautions' taken by direction of the Court to maintain security.

On July 2, 1968 appellant filed motion for change of venue based exclusively upon the newspaper coverage above described. There is no indication that appellant desired or was deprived of an opportunity to adduce additional evidence in support of the motion. The motion was denied by written order on August 15, 1968.

Proceedings to select a jury began on September 17, 1968, almost four months after the cessation of the newspaper publicity complained of. There is no suggestion in the record before us that any unusual difficulty was encountered in selecting twelve jurymen and two alternates acceptable to both the State and the two defendants. We are presented with the voir dire record only as to those persons who were selected to serve. These individuals had at most only a vague recollection of the publicity and in no case had formed any opinion as a result of it. We assume that if the entire voir dire record had disclosed a climate of hostility toward the appellant, that record would have been presented to us.

The news media have a right and a duty to report important community events factually and truthfully as they transpire. They have a like obligation not to slant or color the news in such a way as to create an atmosphere of hostility or prejudice against an individual which will render it virtually impossible for him to receive a fair trial in the forum where the crime was committed. Perhaps in part because of the admonitions contained in our opinion in State v. Coty (Me.-1967) 229 A.2d 205, 210, 212 the newspaper publicity in this case met every reasonable standard of fair reporting and the 'no comment' stance of the prosecuting officials was most commendable. Our summation of the impact of the newspaper publicity in Coty is fully applicable here.

'* * * the balance of pretrial publicity contained little more than normal and factual coverage of the news with respect to these murders. It lacked the continuous and persistent vehemence and intensity which tends to infect a whole community. It had virtually subsided about three weeks after the crimes were committed and over three months before the trial began. Moreover, the voir dire can be fairly assumed to have disclosed no prejudice or fixed opinion on the part of the jurors selected to sit; * * *.'

The Court below did not abuse its discretion in denying a change of venue on the evidence presented.

Motion to Suppress Evidence

The police conducted two searches of appellant's apartment, each under search warrant issued by a magistrate. The application for the first warrant was supported by the affidavit of the Chief of Police. The information therein stated was based in part on the investigation and personal observations made by the affiant at the scene of the crime and in part upon...