State v. Bowman

• Decision Date: 21 March 1991
• Citation: 588 A.2d 728
• Parties: STATE of Maine v. Joel BOWMAN.
• Court: Maine Supreme Court

Page 728

588 A.2d 728

STATE of Maine v. Joel BOWMAN.

Supreme Judicial Court of Maine.

Argued Jan. 30, 1991.

Decided March 21, 1991.

Charles K. Leadbettor (orally), Garry L. Greene, Asst. Attys. Gen., Augusta, for appellant.

James W. Strong (orally), Strout, Payson, Pellicani, Hokkanen, Strong & Levine, Rockland, for appellee.

Before ROBERTS, WATHEN, GLASSMAN, CLIFFORD, and COLLINS, JJ.

WATHEN, Justice.

Defendant Joel Bowman appeals his conviction of murder (17-A M.R.S.A. § 201(1)(A) (1983)) following a jury trial in the Superior Court (Penobscot County, Brody, C.J.). Defendant makes four arguments on appeal: (1) the Superior Court erred in refusing to allow counsel to conduct the voir dire examination of prospective jurors; (2) the change of venue made to accommodate a joint trial of co-defendants was unconstitutional and violated M.R.Crim.P. 21(b)(2); (3) the Superior Court improperly instructed the jury on accomplice liability as it relates to manslaughter; and (4) the Superior Court erred in ordering a dual-trial four-jury procedure in the prosecution of defendant and his three co-defendants. We affirm the judgment of the Superior Court.

The relevant facts may be summarized as follows: In the late afternoon of January 1, 1989, defendant, along with co-defendants Gerald Rolerson, David Turner, and Charles Novisky, drove to several friends' houses and obtained a shotgun and shells. David Turner's brother overheard them discussing whether Randall Lind, the murder victim, was a "narc." Somewhat later, Lind joined the group in the car, and defendant and Rolerson began arguing with Lind about being a "narc." The car stopped on the North Union Road in Washington, and, according to Turner, defendant shot Lind in the back of the head. After the shooting, Rolerson stopped at the Appleton home he shared with Ella Reynolds. He told Ella that he was leaving because of an accident involving the person who had been "causing all the trouble," and that the four co-defendants would be "sticking together." Later, the four arrived at the Portland home of Turner's sister. Rolerson told her that they had shot someone in the back of the head with a shotgun.

Defendant and his three co-defendants were arrested in Maryland and were returned to Maine and charged with intentional or knowing murder in violation of 17-A M.R.S.A. § 201(1)(A) and conspiracy to commit murder in violation of 17-A M.R.S.A. § 151(1) & (4) (1983). The Superior Court (Knox County, Chandler, J.) transferred venue to Penobscot County and ordered that the four co-defendants be tried concurrently with separate juries. It also ordered that voir dire be conducted by the court using its own questions and questions submitted in writing by counsel. Following the court's voir dire, counsel were to be given an opportunity to suggest additional questions and to request that some jurors be questioned individually if cause for such individual questioning were shown. Pursuant to the order, one judge was to preside over the trial of defendants Bowman and Rolerson while another was to preside over the trials of defendants Novisky and Turner. Before trial, the State dismissed the indictment for conspiracy, and co-defendant David Turner pleaded guilty to manslaughter. He later testified for the State at defendant's trial. Following the dual-jury trial, defendant was convicted of murder and now appeals.

Voir Dire

Defendant argues, for the first time on appeal, that the Superior Court abused its discretion in denying defense counsel the right to conduct the voir dire of prospective jurors. He bases this argument on 15 M.R.S.A. § 1258-A (1980) which states: "Any rule of court or statute to the contrary notwithstanding, the court shall permit voir dire examination to be conducted by the parties or their attorneys under its direction."

"The purpose of the voir dire examination is to detect bias and prejudice in prospective jurors, thus ensuring that a defendant will be tried by as fair and impartial a jury as possible." State v. Lovely, 451 A.2d 900, 901 (Me.1982). We have "repeatedly recognized the considerable discretion over the conduct of juror voir dire vested in the presiding justice." State v. Waterhouse, 513 A.2d 862, 863 (Me.1986). Furthermore, we have stated on several occasions that it is within the Superior Court's discretion to conduct the voir dire of prospective jurors on its own without providing an opportunity for counsel to question individual jurors themselves. See State v. Woodburn, 559 A.2d 343, 344 (Me.1989); State v. Lambert, 528 A.2d 890, 892 (Me.1987); State v. Bernier, 486 A.2d 147, 150 (Me.1985); State v. Durost, 497 A.2d 134, 136-37 (Me.1985); State v. Lovely, 451 A.2d at 901.

In exercising its considerable discretion, the Superior Court must make "an informed judgment" about the conduct of voir dire "based upon a foundation of law and reason." Id. It is the court's "responsibility to balance the competing considerations of fairness to the defendant, judicial economy, and avoidance of embarrassment to potential jurors." State v. Moody, 486 A.2d 122, 125 (Me.1984). While in the present case, the Superior Court conducted the initial voir dire examination, defense counsel was given the opportunity to submit questions and to conduct some individual voir dire of prospective jurors himself. Here, as in State v. Bernier, the Superior Court "incorporated in his own examination virtually all of the questions proposed by the Defendant's counsel.... He then chose to ask counsel for both parties whether they had any additional questions...." State v. Bernier, 486 A.2d at 150. Thus, contrary to defendant's contention, the Superior Court did not violate 15 M.R.S.A. § 1258-A. Although the court did conduct the initial voir dire, it also permitted defendant's counsel to submit questions and to conduct additional voir dire "under its direction." We find no error, much less any obvious error.

Change of venue

Citing article I, section 6 of the Maine constitution, the sixth amendment of the United States Constitution, and 15 M.R.S.A. § 1 (1980 and Supp.1990), defendant argues that the change of venue ordered by the Superior Court to accommodate the dual-trial four-jury procedure violated his constitutional and statutory rights.

Article I, section 6 of the Maine constitution guarantees the right to a trial "by a jury of the vicinity." This guarantee does not require, however, that a defendant be tried in the county where the offense was committed. See State v. Baldwin, 305 A.2d 555, 559 (Me.1973). Rather, it means something far less restrictive. We have previously recognized the "common, ordinary meaning" of the word vicinity, as "that which is near, not remote." State v. Longley, 119 Me. 535, 539, 112 A. 260, 262 (1921). Applying this definition, it is clear that Penobscot County is "in the vicinity" of the Town of Washington, where the crime was committed, and the Superior Court did not violate the Maine constitution in transferring the trial there.

The provision in the sixth amendment to the United States Constitution, requiring that an accused be provided with "an impartial jury of the State and district wherein the crime shall have been committed," has no application to a state criminal prosecution for an offense committed within that state's boundaries. As the Supreme Court of Iowa has noted, "The United States Supreme Court has not, to our knowledge, at this time made this clause of the Sixth Amendment applicable to state trials.... [T]he established general rule [is] that [this] constitutional provision applies only to prosecutions in federal courts." State v. Byrnes, 260 Iowa 765, 769, 150 N.W.2d 280, 282 (1967); see also Burton v. United States, 202 U.S. 344, 381, 26 S.Ct. 688, 699, 50 L.Ed. 1057 (1906); People v. Lee, 334 Mich. 217, 224, 54 N.W.2d 305, 308 (1952). Thus, defendant can find no support for his contention in the United States Constitution.

15 M.R.S.A. § 1 states that "[t]he Supreme Judicial Court may by rule provide that, with the consent of the defendant, post-arraignment proceedings in criminal cases may be conducted at locations other than those provided by statute." Pursuant to that statute, the Supreme Judicial Court promulgated M.R.Crim.P. 21(b)(2) which provides: "With the consent of the defendant and the attorney for the state the court may transfer a proceeding to another county or division." In its pretrial order as to location and manner of trial, the Superior Court stated that defendant had no objection to a change in location from Knox County, and no objection appears in the record. Having obtained the necessary consent of the parties and determined that the courthouse in Penobscot County could more easily accommodate the joint trial, the Superior Court was well within its discretion to change the trial's venue. See State v. Pritchett, 302 A.2d 101, 103 (Me.1973).

Accomplice liability as it relates to manslaughter

Defendant argues that the Superior Court "erred in [its] instruction concerning accomplice liability as it relates to manslaughter and thereby tended to confuse the jury as to its options." Over defendant's objection, the Superior Court gave the following instruction on accomplice liability as it relates to manslaughter:

To prove the defendant guilty of accomplice liability to reckless or criminally negligent manslaughter of Randall Lind, the State must convince you beyond a reasonable doubt of four elements: First, that one of the co-defendants recklessly or with criminal negligence caused the death of Randall Lind. Second, that the defendant either solicited a co-defendant to engage in criminal conduct which resulted in the reckless or criminally negligent killing of Randall Lind, or aided or agreed to aid or attempted to aid the co-defendant in planning or engaging in conduct which resulted in the reckless or criminally negligent killing of Randall Lind. Third, that at the time the defendant allegedly...