State v. Gagnon
| Citation | 383 A.2d 25 |
| Parties | STATE of Maine v. Albert GAGNON. |
| Decision Date | 08 March 1978 |
| Court | Supreme Judicial Court of Maine (US) |
Michael E. Povich, Dist. Atty. (orally), Wayne S. Moss, Law Student, Ellsworth, for plaintiff.
Silsby & Silsby by Philip R. Foster (orally), Ellsworth, for defendant.
Before DUFRESNE, C. J., and POMEROY, WERNICK and ARCHIBALD, JJ.
1
Charged by indictment dated April 3, 1975 with burglarizing the summer home of Charity P. Wolfe in Ellsworth on December 24, 1974, Albert R. Gagnon (defendant) was found guilty by jury verdict in the Superior Court (Hancock County) of the reference crime pursuant to 17 M.R.S.A., § 754. 2 He appeals from the judgment of conviction and ensuing sentence. We deny the appeal.
The defendant filed with the Court below a pre-trial motion to have the defendant's prior criminal record suppressed for use for impeachment purposes in the interest, as he argues, of fair play and substantial justice, since the defendant's possible involvement in the case depended upon circumstantial evidence. The presiding Justice denied the motion. We see no error.
Initially, counsel's strategic maneuver would raise as an issue the propriety of testing the admissibility of documentary evidence of records of conviction as well as testimonial evidence of identity of the person whose record of conviction is sought to be introduced by means of a pre-trial motion to suppress. In State v. Perkins, Me., 275 A.2d 586 (1971), we held that a motion to suppress like type of evidence was not within the contemplated operational scope of either Rule 12 or Rule 41, M.R.Crim.P.
this Court has sanctioned pre-trial determination on motions to suppress of such questions as the admissibility of confessions and in-court or out-of-court identifications. See State v. Fernald, Me., 248 A.2d 754 (1968); State v. Barlow, Me., 320 A.2d 895 (1974).
In Barlow, we said that such preliminary determinations may serve the interests of expeditious judicial administration, safeguard the purity of the trial and allow the accused an advance viewing of the case against him.
Notwithstanding the desirability of such advance judicial ruling on the admissibility of his criminal record, should the accused at trial choose to be a witness in defense of his innocence, we view the use of the pre-trial motion to suppress for such purpose within the scope of the trial justice's discretion. See State v. Perkins, supra.
We do not reach the issue, whether there was abuse of discretion in the trial Justice's denial of the defendant's motion to suppress, because the defendant-appellant failed to lay the foundation for a ruling by the Court below and for a decision by this Court. Indeed, the instant record discloses that no evidence was presented to the trial Court respecting the nature of the accused's criminal dossier, nor did the defendant proffer to stipulate as to his criminal convictions which he claimed should be suppressed, to the extent that the trial Justice remarked that there was nothing before him.
The appealing party is duty bound to see that the record on appeal includes all that is necessary to enable the Law Court to decide whether the rulings of which he complains were or were not erroneous. He must affirmatively show that he was prejudicially aggrieved, a burden which cannot be left to inference. See State v. Gervais, Me., 317 A.2d 796 at 802 (1974); State v. Toppi, Me., 275 A.2d 805 at 813 (1971); Appeal of Bronson, 136 Me. 401, 11 A.2d 613 (1940); State v. Wombolt, 126 Me. 351, 353, 138 A. 527 (1927); State v. Dow, 122 Me. 448, 449, 120 A. 427.
The defendant did not testify. At the close of the District Attorney's rebuttal argument, the defendant's counsel, in the absence of the jury, made a motion for mistrial based on the District Attorney's supposed remark to the jury, which he said was made twice, in manner as follows: "Did defense give an innocent interpretation?" The District Attorney, in response to the Court's inquiry, stated "Your Honor, I can honestly say I don't recall the exact words I used. I do recall in rebuttal, I was responding to (defendant's attorney's) argument on innocent interpretation of certain facts. And I was simply responding to show that they should not confuse an innocent interpretation with an interpretation of guilt. But, this was just in direct response to (defendant's attorney's) argument.
A motion for a new trial raising the identical point was later denied by the presiding Justice.
respecting the rights of the accused, and the duty of the jury to disregard his election, not to be a witness, not to mention any direct, unambiguous and specific statement thereon.
In Tibbetts, we cited with approval the rule enunciated in Fontaine v. California, 390 U.S. 593, 88 S.Ct. 1229, 20 L.Ed.2d 154 (1968):
"(W)hen a state jury is asked to convict a defendant on circumstantial evidence, and a constitutionally impermissible comment is made in argument, such comment cannot be considered harmless unless it is shown beyond a reasonable doubt that it did not contribute to the resultant conviction."
In Tibbetts, we formulated the rule in relation to equivocal or ambiguous prosecutorial comment on the failure of a criminal defendant to become a witness, that the State must then demonstrate beyond a reasonable doubt, for classifying the comment as harmless, that the record contains no evidence, either direct or circumstantial, which would rationally support acquittal.
In Tibbetts, the objectionable comment was reproduced in full in the context in which it was used. In the instant case, the objectionable statement appears out of any context in which it was made, so that any reference of the claimed impermissible comment to the defendant's failure to take the stand is wholly conjectural. Absent the Justice's charge to the jury, the defendant-appellant has deprived this Court from consideration of the probability that the Justice's instructions may have dissipated any possible link in the minds of the jury between the objectionable statement and the failure of the defendant to testify. We note that Gagnon personally requested a specific instruction on his right not to be a witness and on the jury's duty to disregard his election to remain silent at his trial. The defendant must be assumed to have been satisfied with the Justice's instructions in relation to this very problem as no objections were thereafter articulated.
Considering that the objectionable statement, in the absence of the context in which it was made, does not per se, directly or indirectly, refer to the defendant's election not to testify in his behalf, we cannot say that there was impermissible comment as claimed by the defendant. Furthermore, assuming the statement to be an equivocal or ambiguous comment by the prosecutor on the failure of the defendant to become a witness, we are satisfied from our analysis of this record that the evidence, albeit circumstantial, demonstrated beyond a reasonable doubt that such comment did not contribute to the resultant conviction as no rational basis for a verdict of acquittal existed. State v. Tibbetts, supra.
The defendant contends that all the testimony which the State introduced in an attempt to prove concerted action between the defendant and two other persons, admitted in evidence over his objection, constituted reversible error on the ground that such evidence was irrelevant, immaterial and prejudicial. He lists this objectionable evidence as follows:
1. Tracks of a cowboy boot near the area of the alleged break;
2. tracks near a green pick-up truck;
3. tracks going away from the Wolfe residence;
4. description of the two men hitchhiking at approximately 7:30 p. m. between Ellsworth and Bangor on Route 1-A, one wearing cowboy boots;
5. testimony that a green pick-up truck stopped to pick up the two hitchhikers;
6. testimony relating to a green pick-up truck registered to Gloria Gagnon.
We rule that all this evidence to which the defendant objected was relevant and material in the circumstantial setting which the State presented to the jury in proof of the defendant's concerted participation in the burglary of the Wolfe residence. But in order to demonstrate its relevancy and materiality, we must relate what this record reveals respecting the investigation conducted by the police following an initial warning through an automatic alarm system at about 1:00 p. m. on December 24, 1974 that a break-in at the Wolfe residence was taking place.
Within very few minutes of the...
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