State v. Berube

• Decision Date: 15 December 1972
• Citation: 297 A.2d 884
• Parties: STATE of Maine v. Reginald J. BERUBE.
• Court: Maine Supreme Court

Page 884

297 A.2d 884

STATE of Maine v.Reginald J. BERUBE.

Supreme Judicial Court of Maine.

Dec. 15, 1972.

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, 1968Omar 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 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, 1968appellant 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 information imparted by an informer, one Raymond Cote.Cote was identified by name and was shown to be the driver of the automobile which transported Berube and Turner to the brickyard and delivered them to their homes thereafter.Cote disclosed that defendant's admitted purpose in going to the brickyard was to break and enter the office of Morin Brick Company, and further that on reentering Cote's car Berube admitted that he had just killed a man.Cote's reliability as a named informer was further supported by the fact that he had furnished information 'as to the whereabouts of the suspected murder weapon used in the murder of Omar A. Goding which in fact was found in the location indicated by the said Raymond Cote.'The purpose of the first search was to look for items of clothing of the appellant stained with mud, clay or blood which would constitute corroborative circumstantial evidence of Berube's presence and participation in the crime.The first warrant also authorized a search for certain items of property found to be missing from the office of Morin Brick Company.The affidavit furnished an adequate basis for the magistrate's finding of probable cause and issuance of the first warrant.During the search under the first warrant (which was otherwise unproductive), the investigating officer observed in plain view on the top of a chest of drawers in the bedroom of appellant's apartment a short and broken length of gold chain.An application was then made for a second warrant to authorize search for and seizure of this fragment of chain.The essential underlying facts set forth in the first affidavit were here repeated but additional information was set forth in the second affidavit.It was disclosed that the affiant had found at the brickyard a similar but somewhat longer broken piece of gold chain with a religious medal attached.The information provided by the officer who observed the chain fragment in the apartment was fully set forth.If this officer was, as we have held, conducting a lawful search under a valid warrant, he had a right to be where he was when he observed the chain fragment 'on the top of the dresser.'The attack launched by the appellant on this procedure is limited to the alleged insufficiency of the affidavits submitted to the magistrate.In State v. Hawkins(Me.-1970)261 A.2d 255we carefully reviewed the requirements which an affidavit must meet in order effectively to undergird a finding of probable cause and the issuance of a search warrant.We conclude as did the Court below that these requirements were fully met in this case and the chain subsequently and...