State v. Elwell

• Decision Date: 09 December 1977
• Citation: 380 A.2d 1016
• Parties: STATE of Maine v. Terry Lee ELWELL and Walter E. Arsenault, Jr.
• Court: Maine Supreme Court

Page 1016

380 A.2d 1016

STATE of Maine v. Terry Lee ELWELL and Walter E. Arsenault, Jr.

Supreme Judicial Court of Maine.

Dec. 9, 1977.

Frank F. Harding, Dist. Atty., Thomas A. Berry (orally), Asst. Dist. Atty., John Bass II, Law Student, Bath, for plaintiff.

Therriault & Golin by Roger S. Golin (orally), Roger Therriault, Bath, for defendants.

Before POMEROY, WERNICK, ARCHIBALD, DELAHANTY, GODFREY and NICHOLS, JJ.

POMEROY, Justice.

"A defendant is entitled to a fair trial, but not a perfect one." Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953).

Because these appellants received a fair trial, albeit an imperfect one, we deny the appeals. Both appellants have appealed from a judgment entered on a verdict of guilty of a violation of 17-A M.R.S.A. § 802 (Arson).

The evidence of guilt produced by the State at trial was overwhelming. Both appellants sought to place responsibility for the fire on a third person. The evidence makes it clear such third person could not have started the fire. A careful reading of the record convinces us beyond a reasonable doubt both appellants are guilty of "arson." The jury verdict of guilty and the imposition of sentence thereon resulted in both appellants being required to pay the penalty for their acts that the law says is their due.

Justice has been done.

As earlier indicated, we are aware appellants' trial cannot be characterized as "a perfect one." However, as we shall hereinafter discuss in detail, the imperfections in our view were not determinative of the result which obtained.

Judge Friendly's question "Is innocence irrelevant?", ¹ although made with reference to collateral attacks on criminal judgments, suggests much of the same rationale which underlies the "harmless error" doctrine established by M.R.Crim.P. 52.

Much thought has been given to the "harmless error" rule in its application to so-called "constitutional errors," especially violations of the Bruton Rule. ²

In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court held that

"before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id at 24, 87 S.Ct. at 828.

The court continued:

"there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error . . . ." Id at 23, 87 S.Ct. at 828.

But it said that not

"all trial errors which violate the constitution automatically call for reversal." Id.

Shortly thereafter the Supreme Court in Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), wrote:

"The mere finding of a violation of the Bruton rule in the course of the trial, however, does not automatically require reversal of the ensuing criminal conviction. In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant's admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error." Id. at 430, 92 S.Ct. at 1059.

In the case now before us, despite the violation of the spirit if not the letter of Bruton, we find the error was harmless beyond a reasonable doubt.

The jury was justified in believing the following facts: Around 1:30 A.M. on September 3, 1976, a fire broke out in an apartment building in Topsham owned by Mrs. Merton Small. The fire damaged a first floor apartment rented by one Marilyn Reno, who had spent that night elsewhere. The fire was investigated by an inspector from the State Fire Marshall's Office who testified at trial that the absence of any evidence that the fire was of natural or accidental origin led him to believe that arson had been the cause. A police officer later testified that he had observed the appellants taking furniture out of the apartment building and loading it onto a truck shortly before the fire started. A few minutes after appellants left in the truck the officer observed smoke coming out of the building.

The State produced the testimony of Mrs. Small and of the rest of the tenants in the building to show the events that led up to the fire. Mrs. Small testified that she had commenced eviction proceedings against Elwell and that a few days before the fire Elwell had told her that the building would be burned. ³ It further developed that on the afternoon and evening before the fire broke out, a party was being held by one of the first floor tenants. Both Elwell and Arsenault, who was not a tenant but who was a friend of Elwell and of some of the other tenants, appeared at the party. Others at the party testified that both Elwell and Arsenault had said at several points in the evening that they intended to burn the building down.

Both appellants took the stand in their own behalf. Basically, they denied burning the building and hinted that another person present at the party was responsible for the fire. Elwell admitted that upon being arrested he had told a police officer that he had not been anywhere near the building after dusk. On the stand Elwell testified that he had been in the building at that time but that he had denied his presence to the officer for fear of being blamed for the fire. On rebuttal, it appeared that the person on whom the appellants tried to place the blame had been asleep when the fire started and had to be awakened by the police.

The first issue raised on appeal concerns jury prejudice. During voir dire, the prospective jurors were asked whether anyone knew the appellant Arsenault. One prospective juror stated, "I know Walter Arsenault. Last year my house was broken into and among other things . . ." The court intervened saying, "Wait a minute, do you know the defendant?" The juror replied, "Yes, among the things that were stolen were . . ." The juror was then dismissed from the panel. Appellants argue that the failure of the court either to dismiss the entire panel or to admonish the jury requires a new trial.

The State contends that the appellants have waived their objections to the jury since, after challenging the entire panel for cause, the appellants indicated their satisfaction with the jury. Appellants also failed to use all their peremptory challenges. We need not decide, however, whether the prior objection was later waived since we find no

"high potential for ineradicable prejudicial impact upon those who ultimately became jurors as to deny to (appellants) a fundamentally fair trial." State v. Gordon, Me., 321 A.2d 352, 368 (1974).

The juror did not accuse the appellant Arsenault of having committed any prior crime. There was no indication that the juror had formed an opinion of the guilt or innocence of the appellant. The court promptly stopped the juror and eliminated any possibility that anything prejudicial might be said.

There was clearly no prejudice to either appellant.

Appellants next contend that it was error to admit the expert testimony of the inspector for the Fire Marshall's Office. At oral argument appellants' counsel conceded that the expert was sufficiently qualified. Appellants argue, however, that the matter on which the expert testified was not beyond common knowledge and that any untrained layman could have given an intelligent opinion on the cause of the fire.

We disagree. The inspector had been adequately trained to determine the cause of a fire. He investigated the possibility that the fire could have been started by accidental or natural means. His elimination of those possibilities formed the basis for his opinion that the fire was of incendiary origin.

There was no abuse of discretion in admitting his testimony.

The third issue asserted on appeal is, in essence, whether the trial court's failure to sever the proceedings prejudiced the appellants in violation of the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 20 L.Ed.2d 476 (1968). Appellants correctly urge that in the case of a joinder the trial justice has a continuing duty to keep a watchful eye over the proceedings and to order a severance when it becomes apparent that the rights of the defendants will be prejudiced. State v. Cuddy, Me., 366 A.2d 858 (1976).

It was ill-advised for the State to move for a joinder in this case, ⁴ knowing that it would seek to introduce extrajudicial statements of each defendant which might incriminate the other. A careful scrutiny of the record below, however, demonstrates that any violation of Bruton was, at most, harmless error.

Bruton v. United States, supra, held that where a confession of one defendant inculpating a codefendant was admitted into evidence, a curative instruction stating that the confession was admissible only against the declarant was insufficient to protect the codefendant. Thus, when the declarant refused to take the stand, the codefendant was denied his constitutional right to confront the witnesses against him. While Bruton was concerned with confessions, we do not read that decision as being so limited. See Schneble v. Florida, supra. The statements complained of here were statements of intent to commit a crime. The statements, with one exception, were clearly admissible against the declarant under M.R.Evid. 803(3). See also Mutual Life Insurance Company v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892); People v. Alcalde, 24 Cal.2d 177, 148 P.2d 627 (1944); State v. Cugliata, Me., 372 A.2d 1019 (1977). While not actual admissions, in the sense that the statements "admitted" prior criminal conduct, the statements are similar to admissions in that they link the appellants to a subsequent crime. If it should appear that these statements incriminated the nondeclarant codefendant and that prejudice arose therefrom, then the "spirit" of Bruton, at the very least, will have been violated.

Upon examination of the record, it is apparent that most of the statements did...