State v. Heald
| Citation | 333 A.2d 696 |
| Parties | STATE of Maine v. Charles P. HEALD. |
| Decision Date | 11 March 1975 |
| Court | Maine Supreme Court |
Thomas A. Berry, Asst. Atty. Gen., Augusta, for plaintiff.
Stanley W. Brown, Jr., Joseph D. Moser, Belfast, for defendant.
Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.
A Waldo County grand jury returned an indictment against the Defendant charging him with breaking and entering a store with intent to commit larceny (17 M.R.S.A. § 754). After unsuccessfully moving for a change of venue and for a jury view the Defendant went to jury trial and was found guilty. He entered an appeal. We deny the appeal.
Before trial Defendant moved for a change of venue alleging that a 'great prejudice against the defendant and the defendant's family' precluded a fair trial in Waldo County.
M.R.Crim.P., Rule 21(a) states:
'The court upon motion of the defendant shall transfer the proceeding as to him to another county if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.'
The presiding Justice deferred ruling on the motion until a voir dire examination of the prospective jurors had taken place. A show of hands disclosed that all but five of the prospective jurors had 'heard of the family name of Heald.' On individual voir dire, in response to Defendant's attorney's direct question, four jurors had heard the Defendant and one of his brothers mentioned in connection with criminal activity, and two others had heard of one of the Defendant's brothers but didn't know of the family relationship until it was disclosed by the question. The defense presented the testimony of the arresting officer who testified that, following the arrest of the Defendant and his alleged companions, 'around a dozen' people inquired of him as to why the Defendant and one of the companions were held under 'much lighter' bail than the third companion. The 'impression' which the officer received from these particular individuals was that they were prejudiced against the Defendant.
As the record contains no affidavit in support of the motion, if one was filed, we must rest our appraisal of the Justice's denial of the motion upon the voir dire examination and the officer's testimony. Each of the prospective jurors who knew that the Defendant or his brother had been involved in criminal activities (except one who was not asked) told counsel and the Court that this knowledge would not influence them in the determination of the Defendant's guilt or innocence in the trial which was about to commence. No challenges for cause were directed against any of these jurors because of their unspecified knowledge of these criminal activities. When the panel was completed the Defendant still had two peremptory challenges remaining 1 which he apparently saw no occasion to use.
At the most, the voir dire demonstrated that a number of the jurors knew that Defendant (and/or his brother) had been involved in prior criminal activity of some nature. The police officer's testimony, at most, disclosed some public concern because the District Court had treated the Defendant more leniently than one of his alleged companions in the matter of bail. There was no claim that newspaper of other pre-trial publicity concerning the events surrounding this particular incident prejudiced the Defendant. As we said in State v. Pritchett, Me., 302 A.2d 101, 104 (1973),
'(t)he true objective is to ascertain whether the potential jurors have acquired a bias or prejudice against the defendant or a fixed and settled impression as to his guilt or innocence.'
There was nothing in the record which required the Justice to find that an impartial jury could not be drawn to try the Defendant in Waldo County or that this particular panel was likely to be incapable of the same punishment. RSA 585:21, 587:8.
There was no abuse of discretion.
At the completion of the State's case the Defendant moved for a judgment of acquittal based upon a claimed insufficiency of the testimony to justify a conviction. He renewed this motion upon completion of all the evidence. Both motions were denied.
The Defendant waived the right to appellate review of the denial of his first motion when he elected to present evidence in his own bahalf after the Justice had denied his motion. Glassman, Maine Practice, §§ 29.2, 29.6; State v. Tomer, Me., 304 A.2d 80, 85 (1973).
We must test the Justice's denial of the Defendant's motion for a judgment of acquittal made at the close of all the evidence against the following testimony which the jury was entitled to accept as fact:
A corporation named Sherwood's Carpet and Color operates a retail shop on the first floor of a two story flatroofed building in Belfast. The second floor is divided into two housekeeping apartments. Access to the shop is by a front door on the High Street side or a back door which is reached by way of a flight of five steps in the rear of the building which lead to a small entryway and then into a hallway. The door to the shop is on the left of this hallway. A flight of stairs leads directly from this hallway to the second floor where the two apartments are located.
At approximately midnight of the July night in question, the attention of two occupants of an apartment situated in a building directly in the rear of Sherwood's shop was attracted by an unusual noise coming from the shop. From their window they observed three men on or beside the steps leading into the building where Sherwood's was located. They watched two of them enter a car which drove away and then soon returned. Moments later, from another position, they were able to see the Sherwood's shop window and discern the head of a person who was moving about inside the shop. These neighbors notified the police department by telephone. Going immediately to the window again they saw the shapes of two persons in the shop and again called the police but before this call was completed the police arrived.
The first policeman on the scene was Officer Rumney who went to the Sherwood's building and looked through a window. He was able by means of the night lights in the shop to see a man (whom he could not identify) in a 'schooched down position' inside the shop. This man had long hair, curled at the back and wore dark clothing. The officer then went immediately to the entrance in the rear of the building. From ground level he could look through a wide entrance door and into the small hallway where with the assistance of his flashlight he could observe that the door to the shop was partially open and that the hasp which had served to secure the door was in an unusual position. At this point he heard a commotion from inside and the door to the shop opened further blocking the officer's view of the hallway, but it was immediately closed by a man who had emerged from the shop. When it closed the officer could see the man (whom he could not identify) starting up the stairs. When the second man came out of the shop and turned to close the door, the officer got an 'excellent' full side view of him. This man was the Defendant, with whom the officer was well acquainted. The two men continued hurriedly to the top of the stairs, although the officer shouted to them to halt, and at the top they appeared to be wrestling with each other in their haste to get through a door there.
Other officers arrived at about this time and one was stationed at the front of the building and one at this back door which was the only exit serving the second floor. During this time the civilian witnesses who kept the scene under observation saw no one leave the building. Officer Rumney and another officer then went up the stairs and found a man (partially dressed) and woman (in bed) in the first apartment. They looked into a small unoccupied storage area and then walked into the second apartment through an open door. A woman occupant of the apartment met them at the door and in an inner room they found two men-one had long hair, curled in the back, wore dark clothing, and was 'breathing quite hard'. Sitting on a couch across from him was the Defendant who had 'a big grin on his face'. The Defendant was placed under arrest. In...
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