State v. Ifill

• Citation: 349 A.2d 176
• Parties: STATE of Maine v. Robert IFILL.
• Decision Date: 17 December 1975
• Court: Supreme Judicial Court of Maine (US)

Page 176

349 A.2d 176

STATE of Maine v. Robert IFILL.

Supreme Judicial Court of Maine.

Dec. 17, 1975.

Joseph M. Jabar, Dist. Atty., Charles K. Leadbetter, Asst. Atty. Gen., Augusta, for plaintiff.

Farris & Foley by Gregory J. Farris, Gardiner, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD, and DELAHANTY, JJ.

ARCHIBALD, Justice.

Robert Ifill was indicted by a Kennebec County Grand Jury on three counts ¹ alleging a violation of the provisions of 29 M.R.S.A. § 1315 (recklessly causing death). A traverse jury returned guilty verdicts on each count. Judgments were entered accordingly from which Robert Ifill has appealed. We deny the appeals.

Appellant has asserted numerous reasons for reversing these convictions, some of which require more than cursory examination. We will deal with these issues independently but not necessarily in the same order in which they were argued.

On March 3, 1974, at approximately 1:40 a. m., an automobile in which the three decedents and the appellant were riding was involved in an accident in the town of Chelsea. The State sought to prove that the appellant was the operator of this vehicle, and further, that his operation thereof was with reckless disregard for the lives of his three passengers since he not only was operating the vehicle while under the influence of intoxicating liquor but was doing so at a dangerous rate of speed considering the hazardous highway conditions on the day in question, which factors combined to cause him to lose control of the vehicle so that it left the highway and crashed directly into a dwelling house. Robert Ifill testified he was not the driver of the vehicle at that time and that the operator was one of the decedents, Edward Rice.

I

The first issue which requires our consideration is appellant's contention that error was committed in denying his motion for a change of venue. ²

Appellant sought to prove that pre-trial publicity in Kennebec County by the news media had created such a prejudicial atmosphere that a constitutionally fair trial could not be obtained in that county.

Certain basic concepts must govern our consideration of the appellant's position. Although under ordinary circumstances the decision of a presiding justice on a motion for change of venue is final absent an abuse of discretion, ³ which the movant must demonstrate, ⁴ there may be circumstances when the nature and quality of pre-trial publicity, per se, mandate a change in venue since, otherwise, the requirements of the Fourteenth Amendment of the Constitution of the United States would be violated. State v. Coty, 229 A.2d 205.

From several decisions of the United States Supreme Court we glean that Fourteenth Amendment violations may flow from facts demonstrating both intensive and extensive pre-trial publicity of an invidious nature tending to arouse general ill will and vindictiveness against the accused. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). It is out obligation to examine both the quantity and the quality of the pre-trial publicity which is made a part of the record on appeal in order to determine whether the appellant has demonstrated such a violation. Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962).

The record contains four newspaper articles appearing in the Kennebec Journal and the Waterville Morning Sentinal, both newspapers of general circulation in Kennebec County. Two of these articles appeared on March 4, 1974, which was the day following the fatal accident. A third article appeared in the Kennebec Journal on May 22, 1974, and the same newspaper contained another article on July 10, 1974.

The indictment in this case was returned July 8, 1974, and hearing on the motion for change of venue was held on September 20, 1974. In one of these articles (in which there were photographs of the accident scene) Ifill was identified as the driver of the vehicle, and in the article of July 10, 1974, it was headlined 'Ifill is indicted in crash deaths.'

In addition to the four newspaper reports appellant introduced two witnesses, the Kennebec County Sheriff and the Augusta Police Chief, both of whom agreed that there was some general knowledge of the appellant in the community and of the fact that the criminal charge against him was pending. Ifill himself testified that his children had repeated neighborhood gossip derived from other children, connecting him with this fatal crash.

Testing these facts against precedent leaves no doubt that appellant has not demonstrated any error in the ruling on the motion for change of venue. The Justice below could properly draw the inference (as we do) that the publicity was neither intensive nor extensive and was not so potentially prejudicial as to deprive Ifill of the opportunity to obtain a fair trial in Kennebec County. The facts so carefully detailed in State v. Coty, supra, were not deemed sufficient to demonstrate such a manifest build-up of prejudice that a refusal to change venue violated the Fourteenth Amendment. By comparison with the facts in Coty those before us become relatively insignificant judged in terms of constitutional standards. We find that appellant's Fourteenth Amendment rights have not been violated.

Although the motion for change of venue was not renewed prior to trial on December 2, 1974, we have examined the record of the voir dire examination conducted at the time the jury was impaneled, our purpose being to determine whether that record demonstrated actual prejudice on the part of the venire then assembled.

We have in mind the rule announced in State v. Pritchett, 302 A.2d 101, 104 (Me. 1973):

'The 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. The effect, if any, of local gossip can best be ascertained by the examination of persons called for jury duty prior to their selection to try the defendant. . . .'

The venire consisted of fifty prospective jurors. Eleven jurors had no knowledge of any kind bearing upon any facet of the case or of the lawyers or witnesses involved. The other thirty-nine jurors were questioned individually with ample opportunity being given for examination by appellant's counsel. Of them nineteen were excused for cause, some of the reasons being either a connection in some respect to attorneys or witnesses in the trial or a knowledge of or acquaintance with one of the deceased. Two were excused for the simple reason that they did not drive a motor vehicle. The record does not disclose the number of challenges exercised by either the State or the appellant, but it does disclose the following which ensued after the necessary jurors had been excused for cause and after a complete voir dire of the remaining panel:

'THE COURT: The clerk may now proceed to impanel a jury of twelve, together with two alternates by calling their names ad seriatum (sic).

(The jury panel was called in the usual manner with both Counsel exercising their peremptory challenges at Side Bar.)

THE COURT: Does the Court understand from Counsel that this panel of twelve jurors and two alternates is satisfactory to the State?

MR. MARDEN: It is, your Honor.

THE COURT: To the Defendant?

MR. FARRIS: It is, your Honor.

THE COURT: They may be sworn.

(The jury was sworn by the Clerk of Court.)'

We conclude that the record fails to show any actual prejudice on the part of any of the jurors selected and it thus follows that there was no obvious error or defect in the actual jury selection process which affected any of appellant's rights. Rule 52(b), M.R.Crim.P.

II

On December 1, 1974 (the day preceding the trial), defense counsel learned from the prosecutor that the State intended to call an additional witness, one Madeline Lerette, who had not been previously listed as a witness. Appellant promptly filed a motion for continuance claiming surprise and that time was needed to investigate the 'integrity, credibility and general liability' of this witness. This motion was denied.

The denial of a motion for continuance is discretionary with the presiding justice. State v. Curtis, 295 A.2d 252 (Me. 1972). If Mr. Ifill is to prevail, he must not only demonstrate that the denial of the motion was an abuse of discretion, but he must also demonstrate prejudice because the ruling was 'palpable error' or resulted in an 'apparent injustice.' State v. Simmonds, 313 A.2d 120 (Me. 1973); State v. Rastrom, 261 A.2d 245 (Me. 1970).

We acknowledge that the testimony of this witness became relevant and beneficial to the State in its endeavor to prove that Ifill was the operator of the vehicle at the time of the fatal accident. Miss Lerette testified in rebuttal that approximately ten minutes before the accident she had seen Mr. Ifill enter the vehicle in the driver's seat and drive the car from a filling station yard. Although other persons had testified that Mr. Ifill had driven the vehicle at an earlier time, she was the last one to see him do so prior to the accident.

The trial began on December 2, 1974. Madeline Lerette did not testify in the presentation of the State's direct evidence. On December 9, the State having rested, Ifill testified in his own defense, contending that the driver of the vehicle was Eddie Rice and that he was a passenger in the back seat at the time of the accident. The defense having rested, the State called Madeline Lerette who testified that she had been driven to the vicinity of her home by Ifill, Edward Rice being a passenger in the vehicle at that time. After she had gotten out of the vehicle she observed it drive into a Sunoco filling station. She then 'went and hid in the bushes' so that she could observe what was happening in the yard. She testified that she saw four individuals around the Ifill car...