State v. Coty

• Decision Date: 18 April 1967
• Citation: 33 A.L.R.3d 1,229 A.2d 205
• Parties: STATE of Maine v. Simon P. COTY. STATE of Maine v. Milton R. SWETT.
• Court: Maine Supreme Court

Page 205

229 A.2d 205

33 A.L.R.3d 1

STATE of Maine v. Simon P. COTY.

STATE of Maine v. Milton R. SWETT.

Supreme Judicial Court of Maine.

April 18, 1967.

Howard M. Foley, County Atty., and Albert Chick Blanchard, Asst. County Atty., Bangor, for appellants.

Albert H. Winchell, Jr., Bangor, for defendant Coty.

Lewis V. Vafiades, Bangor, for defendant Swett.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, and DUFRESNE, JJ.

WEBBER, Justice.

These two respondents, separately indicted, were tried together and convicted by a Penobscot County jury of robbery and murder. The crimes were committed in the evening hours of October 17, 1964. Discovery was made on the following morning. On October 20, 1964 one Stanley Corey, an accomplice and subsequently a witness for the State, was arrested and charged with the murder. Shortly after, the respondents were arrested and similarly charged. After a four day hearing commencing on November 5th the District Court found probable cause and held the respondents for grand jury consideration. They were subsequently indicted. Trial commenced on February 13, 1965 and was completed on February 25, 1965.

CHANGE OF VENUE

The respondents seasonably filed motions for change of venue alleging in effect that pretrial publicity by newspaper, magazine, television and radio had created an atmosphere so prejudicial to respondents that it would be impossible for them to obtain a fair trial by an impartial jury in Penobscot County. These motions were heard by the Presiding Justice commencing on January 25, 1965 and prior to arraignment and the introduction of evidence bearing thereon occupied the greater part of two days. The motions were denied and respondents' claim of error presents for our consideration the most important issue in the case.

On Sunday, October 18, 1964 Edward I. Morris and his son Harold L. Morris were found dead in their home in Bangor. They had been beaten and robbed. Their home had been ransacked. Harold L. Morris, for whose murder the respondents were tried, had died as the result of a gunshot wound which severed his femoral artery and vein. As promptly as circumstances would permit the news media began dissemination of information to the public by their several means of communication. There were no immediate suspects and the early releases in no way dealt with the respondents but only with the tragic events of the weekend. With the killer still unknown and at large, there was an uneasiness and even fear among the residents in the city which continued until news was released that three suspects had been arrested and charged with the double murder.

In support of their motion the respondents placed in evidence copies of the Bangor Daily News, a newspaper of general circulation in Penobscot County. These exhibits which were the six issues published between October 19, 1964 and October 24, 1964 and the issue published on November 5, 1964 contain fair and factual reporting of events as they transpired. In the newspaper published on October 22nd there appeared in the body of the story on an inside page a portion of the admissions given by Corey to the police implicating the respondents. An article, also on an inside page of the October 23rd issue, quoted the county attorney as reporting that investigators had 'unearthed major new evidence during the day to solidify their case against three Bangor men charged with the bludgeon slaying.' The article continued with speculation that the police had recovered the stock certificates believed to be missing from the Morris home. We are not satisfied that these two departures from what may be properly regarded as fair pretrial reporting, not having been repeated or unduly emphasized or featured in headlines, served to create such a climate of hostility and prejudice against the respondents as to make a fair trial in Penobscot County virtually impossible.

Also presented as exhibits were copies of two magazines, Official Detective Stories and Front Page Detective (issues for February, 1965). There is no satisfactory evidence that these publications, each containing a story based on the investigation of the Morris murders, were read by any substantial number of residents of Penobscot County or that they had any appreciable effect on the community attitude within the county toward the respondents.

With one exception, of which more later, television and radio news coverage during the period as reflected in news reports which are exhibits here was for the most part confined to the reporting of facts and was relatively free of sensationalism or gratuitous expressions of opinion with respect to the guilt of the respondents. Moreover, active broadcasting coverage of the case was of relatively short duration and had ceased to be a factor in affecting community opinion after the probable cause hearing ended in early November, 1964. Some time during the week of October 18, 1964 (the exact day is not in evidence), however, the local television station produced a 'documentary' film and narration in cooperation with the law enforcement officials covering the investigation of the Morris case and culminating with the booking of the State's witness, Corey, and the two respondents at the police station. This program lasted between ten and twenty minutes. It was shown but once. It constituted the principal item of evidence relied upon by the respondents as they sought to demonstrate that the news media had created an atmosphere which precluded the empaneling of a jury free of bias and prejudice. The film and script present a remarkable demonstration of many things officials charged with law enforcement should not do as they deal with the news media as well as many things the responsible news gatherer should not do if he would maintain some reasonable balance between a 'free press' and a 'fair trial'. The narrative simply assumes the guilt of the respondents. It employs such sweeping accusations as 'The trio responsible for the vicious crime have been identified by the Penobscot County Attorney's Office as (naming Corey and the respondents)'; 'The quick apprehension of the trio of killers etc.'; 'This close cooperation of the law enforcement bodies closed the vicious crime and brought those responsible to justice in slightly over three days'; 'The officers' determination to bring those responsible before the Bar of the law has now paid off with the quick arrest of those accused of the brutal slaying'; 'Only moments after his confinement, the number one suspect (Corey) startled the investigating officers by revealing that he had accomplices in the crime'; 'The bloodstained clothing, which reportedly had been worn by the number two suspect during the crime, was one of the leading bits of evidence that finally condemned the trio'; 'It was during this search (of a camp being shown on screen) that the officers received their first big break that definitely connected the trio with the slaying'; '* * * two stock certificates * * * forming a direct link between the slaying and the three killers'; 'Simon Coty (respondent here), according to Corey's Statement, was the man who inflicted the death blows'; 'The third killer of the group, Milton R. Swett, 33, of Bangor (respondent here), was pointed out by his accomplices as the driver of the car'; 'The location of the murder weapon, coupled with blood stained clothing, and the stock certificates at the cabin nearly closed the case against the trio'; 'Each of the respondents appearing in court today faced a double charge of murder, which practically assures, if they are convicted, that they will all serve life sentences in Maine State Prison'; 'It is the opinion of this reporter that the local law enforcement agencies cannot be complimented enough for their efficiency in the quick and professional apprehension of the trio of killers. TV2 News would like to thank the officials in charge of the murder investigation for their cooperation in allowing the TV2 News staff to film the highlights of their relentless search for the killers and present this public report.' (Emphasis ours.)

It must be kept in mind that this most unusual narration, from which we have selected only brief excerpts, accompanied the showing of a film which portrayed the officers as, step by step, they pursued their investigation. The viewer became a witness in the house with the bodies of the victims on display. He was taken on tour of the ransacked and disordered rooms. He examined the murder weapon and observed the making of chemical tests upon the clothing of the suspects. He watched as the officers painstakingly searched the cabin and the surrounding area. He observed the examination of the car owned by respondent Swett and observed the respondents as they were taken into the police station and later as they were removed to the District Court. It should be noted and may properly be emphasized, however, that this 'documentary' did not transmit the voices of the respondents or any other participants whose pictures were shown. The only voice heard was that of the commentator.

In addition to offering the exhibits above described, the respondents presented the testimony of certain witnesses. As explained to the presiding justice the respondents employed the technique of presenting as witnesses certain citizens of the county who had been chosen at random and served with summons. There had been no prior discussion with these witnesses on the part of respondents' counsel or anyone else to determine in advance what their testimony would be. We are satisfied that the method employed was a fair and effective means of obtaining a representative cross-section of public opinion and the extent of bias and prejudice against the respondents, if any. We are satisfied that the justice below could properly draw certain conclusions from this testimony tending to support his later determination not to order change of venue. The memory of witnesses...