State v. Coombs
| Decision Date | 05 February 1976 |
| Citation | 351 A.2d 122 |
| Parties | STATE of Maine v. David L. COOMBS. |
| Court | Maine Supreme Court |
Joseph M. Jabar, Dist. Atty., David W. Crook, Robert Daviau, Asst. Dist. Attys., Augusta, for plaintiff.
C. J. & N. C. Bourget by Norman Bourget, Augusta, for defendant.
Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD, and DELAHANTY, JJ.
The defendant was indicted, tried before a jury and convicted under an indictment founded on 17 M.R.S.A. § 3551, 1 charging that he 'feloniously did receive and aid in concealing' previously stolen personal property valued at $100.00, knowing that the same was stolen. He has appealed. We deny the appeal.
The State introduced evidence, which was uncontradicted, that the home of Charles McKenzie in Augusta had been burglarized and the personal property described in this indictment stolen therefrom. Robert L. Gilbert admitted the larceny from the McKenzie home and testified that subsequently he sold and delivered this property to the appellant for $35.00, having previously told him that he had stolen the same and that it was 'hot.'
The defendant, on the other hand, denied ever having had any transaction with Mr. Gilbert. His testimony was supported by three witnesses. 2
The first issue on appeal arises from the failure of the presiding Justice to grant the appellant's motion for a mistrial.
The record discloses the following:
Q Are you the same David L. Coombs who in September of 1958 was convicted of breaking, entering and larceny?
After a prolonged bench conference the Justice denied the motion, following which the jury was returned and given this instruction:
'THE COURT: Now Madam Forelady and Members of the Jury, before you left, you will recall a question was asked of this witness concerning whether or not something had happened back on September, 1958, that involved him. I remind you that the witness certainly never admitted that anything happened to him at all in any way. He never said he was involved in anything. And in fact, after the question was asked, his attorney objected to it and may have said something in connection with the objection.
Now, I'm going to ask you, I want to instruct you that you will completely disregard the question and anything or any inference you may have gotton from anything counsel may have said in connection with the objection.
Now, 'I'm going to take a minute more on this. You remember the opening day of telling you why we have these Bench conferences that irritate Juries because they wonder whatever is going on down there. But, I am put in this position to tell you to disregard things. It's very hard to disregard things.
I also told you that day that sometimes things come out before we have a chance to see them coming, and I have to then impose upon your integrity . . . and I use that word 'integrity' because that's the one word that fits it . . . to follow the instruction to completely disregard what you heard. And this is something that you have to conscientiously do.
I know that each one of you, all twelve of you, are going to disregard that question completely. Nothing to do with this matter whatsoever. The question should not have been asked, and you are going to disregard it.
And I want to tell that to you right now so that you can do it right now.'
During the bench conference it became clear that the unanswered question was improper in view of the provisions of 16 M.R.S.A. § 56. 3
We also must note that the prosecutor did not observe the recommended procedure so carefully delineated in State v. Toppi, 275 A.2d 805 (Me.1971), since he did not present the proposed question preliminarily to the Justice presiding in order that he might pass on its admissibility. However, despite the impropriety of the question and the failure to observe the admonition in State v. Toppi, the basic issue in view of the corrective instruction quoted supra is whether the refusal to grant the motion for mistrial exceeded the bounds of judicial discretion.
The burden of proof on appeal to demonstrate such abuse rests upon the appellant. State v. Hume, 146 Me. 129, 78 A.2d 496 (1951). The record is devoid of any suggestion that the prosecutor acted in bad faith in asking the question or that he had an illicit...
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State v. Brooks
...that a defendant is always entitled to a mistrial as a result of an improper reference to his past criminal conduct. In State v. Coombs, 351 A.2d 122 (Me.1976), the prosecuting attorney, in cross-examination improperly asked the defendant whether he had been previously convicted of a felony......
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State v. Kelley
...it. Instead, he chose to move for a mistrial. Such a motion is addressed to the sound discretion of the trial court, State v. Coombs, Me., 351 A.2d 122, 124 (1976); State v. Hachey, Me., 278 A.2d 397, 403 (1971), and should be granted only in the event that no remedial measure short of a ne......
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State v. Prudenzano
...be disturbed absent a clear showing by the appellant of abuse of that discretion. State v. Gagne, 362 A.2d 166 (Me. 1976); State v. Coombs, 351 A.2d 122 (Me. 1976). Furthermore, such a motion should be granted 'only in the event that no remedial measure short of a new trial will satisfy the......
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Brubach v. Almy
...9 Id. The court's decision denying Brubach's motion for a mistrial will be set aside only for an abuse of discretion. 10 State v. Coombs, 351 A.2d 122, 124 (Me.1976). Despite Almy's failure to follow the Toppi procedure we think the court did not abuse its discretion in denying Brubach's mo......