State v. Fernald

• Decision Date: 19 December 1968
• Citation: 248 A.2d 754
• Parties: STATE of Maine v. George A. FERNALD, Jr.
• Court: Maine Supreme Court

Page 754

248 A.2d 754

STATE of Maine v. George A. FERNALD, Jr.

Supreme Judicial Court of Maine.

Dec. 19, 1968.

John N. Kelly, Asst. Atty. Gen., Augusta, for plaintiff.

Joseph B. Pellicani, Rockland, for defendant.

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

WEATHERBEE, Justice.

On appeal.

On the morning of August 12, 1965, Jurgen Boerner, the night clerk at the Marion Village Motel in Rockport, was found dead. Examination disclosed that he had died as a result of three gunshot wounds. The office showed signs of having been ransacked and a quantity of money was apparently missing from the cash register.

The defendant, a young man of eighteen who lived in Camden, had been employed at the Motel and about a week before the death of Boerner the defendant had stopped working and was heard in a bitter altercation with Boerner over money which the defendant claimed was due him for wages. The defendant threatened to come back later after the money and Boerner answered 'You will over my dead body.'

It was determined that the deceased had been killed by .38 caliber full patch military type bullets, which may be fired from either .38 special or .357 magnum revolvers. It was learned that in May of that year defendant had in his possession a .357 magnum revolver with which he had been target shooting in a gravel pit. On August 16th officers removed a .38 caliber full patch military bullet from the sand behind the log at which defendant had been shooting. During the early morning of August 17th Lt. Jordan, a ballistic expert, examined this bullet and determined that it had been fired from the same gun that fired the bullets which caused Boerner's death.

Later that morning the officers went to defendant's parents' home in Camden where defendant also lived with a search warrant empowering them to search the premises for a .357 magnum revolver. Mr. Fernald, defendant's father, joined them there, invited them into the house and took them into various rooms, including defendant's bedroom, and then out onto the grounds. At about 11:00 A.M., while some of the officers continued to search the grounds, two officers drove Mr. Fernald, Senior, to the public library. Mr. Fernald went into the library alone and came out with the defendant and both rode back to the Fernald home in the police car. The car was parked in front of the Fernald home and one of the officers explained to defendant that he was not required to answer any of the officer's questions and that anything he said could be used against him. He was also told that he had the right to the assistance of an attorney and to make an immediate phone call. The officer told defendant he was under arrest on charges of robbery and the murder of Boerner. The officers questioned defendant in the car intermittently for two hours beginning at 11:30 A.M. Some of this time the defendant's parents were in the car with the defendant or standing outside talking with him through the car window. His father remained in the car with him the first forty-five minutes. The defendant at first denied involvement in the crimes. The officers then took defendant to the county jail in Rockland where they booked defendant and then after repeating their explanation of his rights and offering him the use of the telephone, they resumed questioning him. Other officers continued the search at the Fernald residence and in a very short time one of them found hidden in an old automobile tire which outlined a shrubbery plot a plastic bag containing.$236.00.

Just before four o'clock that afternoon the defendant orally told the Sheriff the details of his shooting Boerner. Defendant then took the officers to the Megunticook River and pointed out the spot where he had sunk the gun with which he had killed Boerner and the sneakers he had worn at the time. The officers later recovered these articles. The defendant returned to the jail where he repeated his confession and signed a typewritten inculpatory statement which a stenographer had prepared from shorthand notes of his verbal admissions.

An indictment charging defendant with murder was returned by the Grand Jury of Knox County and after trial before a jury in May of 1966 he was found guilty of murder. He entered an appeal which brings the matter before us.

The defendant designated numerous points on appeal. We will examine in order those which have been argued before us. Although we consider the others to have been abandoned (State v. Sutkus, 134 Me. 100, 182 A. 15 (1935)) we have examined them and find them to be without merit.

Failure of the Presiding Justice to order all witnesses sequestered.

The defendant's first assignment of error is that although all other State's witnesses were ordered sequestered during the trial, Miss Pearl Borgerson, who testified for the State, was permitted to remain in the courtroom where she performed her official duties as Clerk of Courts during the trial.

At the outset of the trial, counsel for the defense moved that all prospective witnesses for the State be ordered sequestered. The Court granted the motion except as it would apply to Miss Pearl Borgerson, the Clerk of Courts. It is not disputed that Miss Borgerson remained in the courtroom during the trial performing her official duties and, when called to the stand, she testified to the circumstances surrounding the defendant's making the written confession which Miss Borgerson had taken in shorthand and reduced to typewritten form.

The rule in this State concerning sequestration of witnesses was stated by our Court in State v. Cox, 138 Me. 151, 178, 23 A.2d 634, 647 (1941).

'In this state there is no statute or rule of court requiring the presiding justice, on motion, to segregate the witnesses during the trial. Whether or not the witnesses should be segregated in a given case, rests in the sound discretion of the court, to whose ruling an exception will not lie unless it appears that there has been an abuse of discretion.'

See also State v. McKrackern, 141 Me. 194, 208, 41 A.2d 817, 32 A.L.R.2d 360 (1945); We follow what appears to be the majority rule. 53 Am.Jur., Trial, Secs. 31, 32; 24 C.J.S. Criminal Law § 1439, page 48.

The defendant's motion for sequestration of witnesses was granted but with Miss Borgerson specifically excluded. As the granting or denying of the motion to sequester all witnesses is subject to the sound judicial discretion of the Presiding Justice, so is the decision whether or not to exclude one witness from such an order. It was within the Justice's discretion to determine whether or not the Clerk's official services in the courtroom were so required as to justify her being excepted from his order in view of the nature of the testimony to be given by her. We find no abuse of this discretion. Defendant's right to be present during all proceedings.

The defendant contends that he was denied the right to be present at all times during his trial.

Rule 43, M.R.Crim.P. provides that:

'The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury, and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. * * *'

This claim by defendant is two-fold. First, he contends that he was not present at the view when the jury observed the locus of the crime or in the courtroom when the jury returned for additional instructions from the Court. These issues were not raised at trial and would not be considered by us on appeal except that they allege basic, serious and fundamental defects. State v. Smith, 140 Me. 255, 37 A.2d 246 (1944).

This jurisdiction has for many years held that the purpose of a jury view in a criminal case is not to receive evidence but to enable the jury more intelligently to apply and comprehend the testimony presented in court. The view is not a part of the trial and we have held that neither our statutes nor the common law require the defendant's presence. State v. Slorah, 118 Me. 203, 106 A. 768, 4 A.L.R. 1256 (1919). The defendant has no constitutional right under Due Process to be present at a jury view. Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, 90 A.L.R. 575 (1934). However, the practice in this State is for the defendant to be present at the view unless he chooses not to do so.

On the other hand, Rule 43 makes necessary the defendant's presence during instructions to the jury, unless he effectively waives the right. 21 Am.Jur.2d Criminal Law, Section 299.

The only support which the defendant presents for these contentions is the fact that the record does not state whether the defendant was or was not present either at the view or during the supplemental instructions. If in fact the defendant was absent at any point during the trial he could have called that fact to the attention of the Justice. He was represented by competent and experienced counsel (whose services he specifically sought to retain as late as a year following trial) and who never at any time by motion or otherwise suggested on the record his client's absence during any part of the trial. We find that the record does not affirmatively recite the defendant's presence when Court convened after any of the numerous recesses and adjournments, yet at different times during trial several witnesses identified him as being present, the Justice addressed him personally on three different occasions and the defendant took the stand once to testify.

It is presumed that the procedure of a court of general jurisdiction has been regular and proper. State v. Peloquin, 106 Me. 358, 76 A. 888 (1910); Darlington v. State, 153 Neb. 274, 44 N.W.2d 468, 469 (1950). In testing the correctness of defendant's trial on appeal, we presume the presence of the defendant throughout the trial unless the record indicates otherwise.

Defendant's other contention as to this issue is that during the trial there...