State v. Bessey

• Decision Date: 20 November 1974
• Parties: STATE of Maine v. Charles T. BESSEY.
• Court: Maine Supreme Court

Page 807

328 A.2d 807

STATE of Maine v. Charles T. BESSEY.

Supreme Judicial Court of Maine.

Nov. 20, 1974.

Vernon I. Arey, Asst. Atty. Gen., Augusta, for plaintiff.

Caroline Glassman, Portland, for defendant.

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

WEATHERBEE, Justice.

Indictments were brought against the Defendant in 1970 charging him with two felonious homicides punishable as murder. He pleaded not guilty and was tried on the indictment charging him with the death of Mildred Eddy. The jury found him guilty of assault with intent to kill.

The Court then granted the State's motion to reduce the charge in the other indictment (which charged the Defendant with the death of Russell M. Choate) to assault with intent to kill and Defendant entered a plea of nolo contendere to that indictment. M.R.Crim.P., Rule 11.

The Defendant was sentenced to serve a term of not less than 4 1/2 and not more than 10 years for the assault upon Mildred Eddy and was committed. After he had served six months of this sentence, he filed a petition for the statutory writ of post-conviction habeas corpus in which he contended for the first time that the Superior Court had lacked jurisdiction to sentence him because the offense of assault with intent to kill is not an offense necessarily included within a charge of felonious homicide in the penalty degree of murder.

On November 22, 1972, this Court agreed with that contention and held that the indictment charging Defendant with felonious homicide in the penalty degree of murder was not legally sufficient to form a basis for his conviction of the crime of assault with intent to kill Mildred Eddy. His conviction was set aside and the Defendant was ordered enlarged forthwith. Bessey v. State, Me., 297 A.2d 373 (1972). At that time he had been incarcerated approximately 22 months.

On May 9, 1973, the State indicted the Defendant for the offense of assault with intent to kill Mildred Eddy, the offense for which he had erroneously been convicted in January, 1971. ¹ The Defendant responded to this indictment with a plea of not guilty and a motion for dismissal (M.R.Crim.P., Rule 12(b) (2)), basing his argument for dismissal on three grounds. Defendant argues first that, because he has already been convicted once for the offense of assault with intent to kill Mildred Eddy (on the indictment charging felonious homicide punishable as murder), another trial now for assault with intent to kill will place him in double jeopardy and is, therefore, barred both by the Fifth Amendment of the Constitution of the United States and Article I, § 8 of the Constitution of Maine. Secondly, Defendant urges that prosecution under the present indictment will deny him fundamental fairness and due process of law in violation of the Fourteenth Amendment of the Constitution of the United States and Article I, § 6-A of the Constitution of Maine. Finally, it is Defendant's contention that institution of the present action denies him the right to a speedy trial guaranteed by the Sixth Amendment of the Constitution of the United States and Article I, § 6 of the Constitution of Maine.

A Justice of the Superior Court denied Defendant's motion to dismiss and the matter was ordered reported to this Court for decision on the Defendant's claimed entitlement to dismissal. M.R.Crim.P., Rule 37A(b). ²

The Defendant's first two claims can be reduced to the proposition that having convinced this Court that his 1971 conviction of assault with intent to kill had no legal validity, he may now raise that conviction as a bar to further prosecution for that offense.

The Defendant's Claim of Double Jeopardy

We find no support for the Defendant's first proposition, using either federal Fifth Amendment double jeopardy standards (which the states must now meet under the pronouncement of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), or those of our own constitution.

The United States Supreme Court accepted unequivocally in United States v Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896) the principle that a defendant who by writ of error succeeds in having his conviction set aside may be tried again for the offense for which he had been convicted. This principle has since been reasserted in numerous cases as the Court noted in United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed. 2d 448 (1964) which described the Ball rule as a well established part of our constitutional jurisprudence, citing Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919) (reversed after conviction for confession of error); Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950) (reversed after convicting because of insufficient evidence); Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960) (reversed after conviction for error in instructions to the jury).

In Tateo Justice Harlan articulated the basic philosophy behind the rule:

'While different theories have been advanced to support the permissibility of retrial, of greater importance then the conceptual abstructions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendant's rights as well as society's interest.' 377 U.S. at 466, 84 S.Ct. at 1589, 12 L.Ed.2d at 451.

Later, in United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) the Court held that a sua sponte declaration of mistrial by a presiding Justice was a bar to reprosecution. Justice Harlan, in a plurality opinion, distinguished this situation from one is which a conviction is reversed on appeal, saying:

'The determination to allow reprosecution in these circumstances (where a defendant wins a reversal on appeal of a conviction) reflects the judgment that the defendant's double jeopardy interests, however defined, do not go so far as to compel society to so mobilize its decision making resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error. But it is also clear that recognition that the defendant can be reprosecuted for the same offense after successful appeal does not compel the conclusion that double jeopardy policies are confined to prevention of prosecutorial or judicial overreaching. For the crucial difference between reprosecution after appeal by the defendant and reprosecution after a sua sponte judicial mistrial declaration is that in the first situation the defendant has not been deprived of his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal. On the other hand, where the judge, acting without the defendant's consent, aborts the proceeding, the defendant has been deprived of his 'valued right to have his trial completed by a particular tribunal." 400 U.S. at 484, 91 S.Ct. at 556, 27 L.Ed.2d at 556.

Although, as Justice Harlan noted in Tateo, different theories have been advanced to justify the Ball rule, it is abundantly clear to us that the federal constitutional prohibition against double jeopardy does not extent to retrial for the offense for which a defendant has been convicted when that conviction has been reversed for error at the defendant's instigation. ³

Our own Court has held to a similar position with equal consistency. In State v. White, Me., 285 A.2d 832, 834 (1972) we declared that the principle that 'retrial after a successful appeal does not constitute double jeopardy is by now 'Hornbook' law.'

In State v. Fletcher, Me., 288 A.2d 92 (1972) we cited the White decision and observed that

'(i)t is elementary that a Defendant's appeal does not deprive the State of jurisdiction to try him again if, on appeal, his conviction is set aside . . . and to impose (within the limitations of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)) a new sentence if a Defendant's new trial results in a new conviction.' 288 A.2d at 94-95.

Our present case is very nearly a classic example of one which demands the application of the Ball rule of right to retrial. ⁴ Only the error of the Justice in submitting the issue of assault with intent to kill to the jury required reversal. The defendant was not deprived of right to go to the jury on the charge of felonious homicide (as was the defendant in United States v. Jorn, supra) and, in fact, gained an implied acquittal on that charges as a result of the erroneous verdict. ⁵

The Same Transaction Test

The Defendant, however, urges us that fundamental fairness in prosecution and the due process clause should impel us to abandon our traditional concept of double jeopardy and adopt in its place the more liberal 'same transaction' test. The rationale of this standard is that the state should not be permitted to put a defendant to successive trials for the same or different charges of criminal conduct arising out of the same transaction but should, if prosecution of several offenses committed in the same occurrence is desirable, join the charges for a single trial. This Defendant says he was entitled to be tried-at one trial-for any and all violations of law for which the State chose to...