State v. Heald

• Decision Date: 06 July 1973
• Citation: 307 A.2d 188
• Parties: STATE of Maine v. Augustus F. HEALD.
• Court: Maine Supreme Court

Page 188

307 A.2d 188

STATE of Maine v. Augustus F. HEALD.

Supreme Judicial Court of Maine.

July 6, 1973.

David M. Cox, County Atty., Bangor, for plaintiff.

Logan & Kurr by John F. Logan, Bangor, for defendant.

Before DuFRESNE, C. J., and WEBBER, POMEROY, WERNICK and ARCHIBALD, JJ.

ARCHIBALD, Justice.

The defendant was indicted, tried before a jury, and convicted of being an accessory before the fact to an armed robbery. He had likewise been indicted as an accessory after the fact to the same robbery and the issue arising from the treatment given this charge will be dealt with under Point II, infra. His timely appeal is premised on five points, none of which is meritorious, but which requires individual discussion.

I Motion to Dismiss the Indictment

This motion was premised on the assumption that the grand jury found a 'True Bill,' (quoting from defendant's brief) 'based solely and exclusively on indirect and hearsay evidence.'

As bearing on this issue, the record before us contains only the following:

1) Motion for Discovery, dated October 1, 1970, requested the State, inter alia 'to disclose . . . the names and addresses of each and every witness who testified before the Grand Jury. . . .'

2) The State responded thereon, as follows: 'The witnesses who testified before the Grand Jury and their addresses are as follows:

Lawrence Hall 74 James Street, Bangor, Maine

Bruce Morrill 23 East Summer Street, Bangor, Maine

Robert Perry 121 Lincoln Street, Bangor, Maine.'

3) The Motion to Dismiss was dated October 3, 1970, on which had been noted, without elaboration, 'Motion Denied.' This ruling was preceded by a hearing during which counsel had argued their respective positions, but at which no testimony was presented.

From the posture of the record before us, to grant the defendant's motion would be to rule in a vacuum. We see no reason to depart from our previously well established policy not 'to inquire into the sufficiency of the evidence on which the grand jury acted.' State v. Fitzherbert, 249 A.2d 760, 761 (Me.1969); State v. Perkins, 275 A.2d 586 (Me.1971). This point is without merit.

II

Prejudicial granting of defendant's motion to dismiss indictment charging defendant with being an accessory after the fact.

The defendant had been indicted both as an accessory before the fact ¹ and an accessory after the fact ² to robbery. Pursuant to M.R.Crim.P., Rule 13, the indictments were ordered consolidated and tried together. The record is barren of any suggestion of prejudice resulting to the defendant by this order. M.R.Crim.P., Rule 14. At the conclusion of the testimony the defendant moved for a "judgment of acquittal on both indictments," and, because the State had failed to prove that the defendant was not the parent of the alleged principal felon (one of the elements of proof mandated by § 342) the motion was granted and judgment was entered for the defendant in DOCKET NO. 3653. ³

Although it was argued that informing the jury of this ruling, and the reason therefor, was prejudicial to the defendant because the jury might somehow draw the inference that otherwise the State had proved its case, we fail to understand how a defendant can complain if he is the ultimate beneficiary of the ruling he has requested.

A full reading of the instructions of the Justice below dealing with § 341 (as will be discussed, infra) removes any doubt of possible prejudice resulting from informing the jury of the ruling.

III

Was it error to appoint as counsel for a State's witness the same attorney who was representing the defendant in another court on a separate and distinct criminal charge?

While one Harley R. Frazier was testifying the Justice below appointed counsel to advise him on such Fifth Amendment issues as might arise. By coincidence, this same attorney represented the defendant as appellate counsel in a pending but completely unrelated case. ⁴ On objection being registered the Justice below asked: 'Do you care to make an offer of proof of what you feel may be the possible conflict of interest here?' Defense counsel responded:

'I don't know as I can make an offer of proof. I think . . . that I would like to enter a protest . . . to Mr. . . . representing this witness in a hearing in which my client is the respondent, not because today there is or may be any conflict of interest, I don't know where the ramifications in this case or the other case will lead.'

The Justice had fully explained to Mr. Frazier his Fifth Amendment rights and had appointed counsel to implement these explanations as the questioning proceeded. The record discloses that no questions were asked to which answers were refused because of possible self-incrimination.

The defendant relies on Glasser v. United States (1942), 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, as support for his position. We note marked distinctions between the facts in Glasser and those before us. Here, the witness had already entered a guilty plea to the crime of accessory before the fact to the robbery and counsel was appointed for the limited purpose of protecting him from further self-incrimination. The defendant here was represented by independent counsel, whereas in Glasser, the same attorney represented a co-conspirator in a joint trial. Additionally, the Glasser Court was able to isolate instances where prejudice resulted from the co-representation, but such demonstration is not possible on this record. ⁵ The case is inapposite to the facts before us.

The presiding Justice found that his appointment of counsel for the witness was not prejudicial to the defendant. The counsel so appointed saw no prejudice and so stated. Counsel for the defendant could not specify any reason to support his objection and the subsequent record demonstrates nothing to support his mere conjecture.

This point of appeal is without merit.

IV

The sentence imposed by the Court constituted cruel, unusual and unreasonable punishment.

The defendant was sentenced to serve 'not less than Ten (10) years and not more than Thirty (30) years (in the) Maine State Prison.'

Robbery (17 M.R.S.A. § 3401) is punishable 'by imprisonment for any term of years' and is a felony. Since the indictment charged the defendant with being an accessory before the fact to a robbery and since 15 M.R.S.A. § 341 provides that an accessory before the fact to a felony is subject to be 'punished in the manner prescribed for the punishment of the principal felon,' the sentence imposed was within statutory limits.

The record before us indicates a disclosure to the Justice below of facts from which he could conclude that the defendant was a 'professional criminal.' His announced purpose for the sentence imposed was 'to protect society.' We see no occasion to include herein a summary of the defendant's extensive history of involvement with the criminal law, except to say that it fully supports the conclusion reached by the sentencing Justice. With this background before us, the sentence imposed, being within statutory limits, and the penalty for robbery of 'any term of years' being neither inhuman nor barbarous, does not fall within those prohibited by Article 1, § 9 of the Constitution of Maine. See 21 Am.Jur.2d Criminal Law §§ 611-12 & n. 13.

V

Requiring the jury to return 'Special Findings' in the event of a 'Not Guilty' verdict

Although the record discloses no stated reason for so doing, the jury was instructed to answer two questions, but only in the event of a 'Not Guilty' verdict, namely, 1) was it reached because the jury found the defendant to be 'constructively present at the scene of the crime' or, 2) because the State 'failed to prove the elements of the crime of accessory before the fact beyond a reasonable doubt.' Defendant's counsel seasonably noted his objection by stating: 'This may be highly prejudicial to the defendant and imposes a burden on this jury that is not required of it.'

The issues emerging are these:

1) Was it error to submit the questionnaire to the jury?

2) If so, was the error harmless?

Article 1, § 6 of the Maine Constitution grants an accused the right '(t)o have a speedy, public and impartial trial, and, except in trials by martial law or impeachment, by a jury of the vicinity.'

It is basic to observe that our Constitution (independently of the Sixth Amendment to the Constitution of the United States which is, of course, binding on the states, State v. Wheeler, 252 A.2d 455 (Me.1969)) grants to all persons accused of criminal conduct the right to trial before an impartial jury. As was said in Bennett v. State, 161 Me. 489, 493, 214 A.2d 667, 671 (1965), '(a) potentially partial jury will not do.' It is, furthermore, axiomatic that 'not only must the jury be free from direct control in its verdict, but it must be free from judicial pressure, both contemporaneous and subsequent.' United States v. Spock, 416 F.2d 165, 182 (1st Cir. 1969); United States v. James, 432 F.2d 303 (5th Cir. 1970).

We begin with the assumption, since neither judicial precedent, nor any Maine statute, nor the Maine Rules of Criminal Procedure so provides, that the use of special findings in criminal cases is not compatible with our traditional practice. Although the Maine Rules of Civil Procedure (Rule 49(a) and (b)) allow the use of special verdicts and a general verdict accompanied by answers to interrogatories in civil cases, the use of this procedure, by analogy, is not extended to criminal cases. State v. Osburn, 211 Kan. 248, 505 P.2d 742 (1973); United States v. Adcock, 447 F.2d 1337 (2nd Cir. 1971); State v. Anonymous, 6 Conn.Cir. 393, 275 A.2d 629 (1971); State v. Boggs, 87 W.Va. 738, 106 S.E. 47 (1921). We conclude that it was error to require the jury to respond to the interrogatories in the event of a 'not guilty' verdict, but we hesitate to characterize the error as necessarily of constitutional dimension. United States v. James, supra.

There are jurisdictions which, by practice or by...