State v. LeBlanc

• Decision Date: 20 April 1972
• Citation: 290 A.2d 193
• Parties: STATE of Maine v. Gerald LeBLANC.
• Court: Maine Supreme Court

Page 193

290 A.2d 193

STATE of Maine v. Gerald LeBLANC.

Supreme Judicial Court of Maine.

April 20, 1972.

Foahd J. Saliem, County Atty., Augusta, for plaintiff.

Alan C. Sherman, Waterville, for defendant.

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

WERNICK, Justice.

Defendant, LeBlanc, tried with a co-defendant on a charge of murder before a jury, was found guilty as charged ¹ and on June 24, 1958 was sentenced to life imprisonment. An appeal from the judgment of conviction (which under our procedure at that time was embodied in the sentence) was timely filed but was subsequently withdrawn. It thus appeared that there had been entered against defendant a final judgment of conviction of murder.

In a subsequent post-conviction habeas corpus proceeding commenced in December of 1969, however, it was established that the defendant had been an indigent person at all times relevant in the 1958 proceedings and

'was never informed as to the rights of an indigent person to appeal nor was he consulted when the appeal was withdrawn.'

It was decided, therefore, that the judgment of conviction against defendant had not become final but remained subject to a right of appeal. Accordingly, in 1970 defendant was afforded a reinstated right to perfect his appeal from the 1958 judgment of conviction. Defendant perfected the appeal and it is now before us for decision.

I

Among the issues raised by defendant in the appeal are three questions generated by principles of constitutional law newly formulated since the judgment of conviction was entered in 1958. They are the following: (1) the improper admission into evidence, in violation of the evidence-exclusionary rule promulgated in Mapp v Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), of various articles claimed to have been seized in contravention of the Fourth Amendment as incorporated in the Fourteenth Amendment of the Constitution of the United States; (2) the improper admission into evidence of identification testimony allegedly tainted by a violation of the Sixth Amendment as incorporated into the Fourteenth Amendment in that defendant was without counsel (unwaived) at a pre-trial identification confronation held at an allegedly critical stage of the proceedings-within the doctrine of Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) ²-and cf. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); and (3) prejudicial error in the proceedings claimed to have resulted because of a violation of the Sixth Amendment as embodied in the Fourteenth Amendment in that defendant was without counsel (unwaived) at the bindover probable cause hearing, a critical stage of the proceedings,-as held by Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).

It is clear that had defendant's appeal come before this Court and been decided in 1958, none of the foregoing principles would have furnished a basis for decision; they were then not yet promulgated to be cognizable.

Furthermore, since each of these new constitutional principles has been held to be operative without legal effectiveness as to 1958-respectively, in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); and Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972), each principle would be without benefit to defendant were he engaged in a proceeding recognizing the finality of the 1958 judgment but attacking it collaterally, in spite of its finality, to achieve post-conviction remedy. Linkletter v. Walker, supra.

Defendant, however, maintains that the present proceeding, because it is an appeal, seeks a review of the 1958 judgment of conviction by a direct attack on the judgment before it has become final.

Defendant asserts that the character of the present proceeding as a direct attack on a judgment not yet final has not been altered, or lost, because it emerged as the result of an intervening proceeding in which the judgment had been treated as ostensibly final and had been subjected to collateral attack by post-conviction habeas corpus procedures.

Defendant argues, further, that since the nature of the present proceeding is an appeal from a judgment which is not yet final and is in the process of being reviewed to ascertain whether it shall become final, the decision must be predicated upon currently controlling principles of constitutional law, including those newly formulated as above mentioned. Hence, defendant characterizes as irrelevant the point that these new principles have been held to be effective prospectively only from and after specific dates which are subsequent to the judgment of conviction entered in 1958.

Defendant may be held correct in his position that the present proceeding, regardless that it resulted from a collateral attack upon the original judgment of conviction by post-conviction habeas corpus, is to be characterized as a direct attack upon a judgment not yet final. Defendant is in error, however, in his claim that the nature of the proceeding as a direct attack upon a judgment not yet final mandates that current constitutional law must be held governing and that the retrospective-prospective distinctions developed to ascertain the operative effectiveness of newly formulated constitutional principles in particular cases are immaterial to the present proceeding.

While there had been a time when it was accepted without question that the retrospectivity-prospectivity distinction was a function only of post-conviction collateral attack proceedings and that current constitutional law would control in a direct review of a judgment by appeal, Linkletter v. Walker, supra, this principle has now been repudiated. After various incursions made in cases such as Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), Stovall v. Denno, supra, and Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) upon the doctrine (assumed in Linkletter) that current law governs in every direct review of a judgment, the Supreme Court of the United States has finally laid the doctrine to rest in Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971).

In Williams v. United States, the Supreme Court of the United States decided that the choice of whether current, or prior, constitutional law will govern in a particular criminal proceeding will be made independently of, and unaffected by, the stage of the proceeding if before judgment or, if after judgment, by the nature of the proceeding as a direct review of, or collateral attack upon, the judgment. Rather, the choice of prior, or current, constitutional law as controlling will depend upon a weighing of the merits and demerits in each case

'by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation' (p. 652, 91 S.Ct. p. 1152)

and described in further detail as

'(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.' (n. 5, p. 652, 91 S.Ct. p. 1152)

Williams v. United States, supra, thus settles-in combination with Linkletter v. Walker, supra, Stovall v. Denno, supra, and Adams v. Illinois, supra-that defendant must now fail in his reliance upon the three points of appeal as above delineated. They are predicated on principles of constitutional law newly formulated and held prospectively effective only as of 1961 and subsequently and which, therefore, are without application to the legal validity of a 1958 judgment of conviction. This remains true notwithstanding that the instant proceeding is a direct review of the judgment before it has become final.

II

We proceed to consider the other points of appeal raised by defendant.

Independently of the right to counsel (under the Sixth Amendment as incorporated into the Fourteenth Amendment) as having constitutional bearing upon a pretrial identification confrontation conducted at a critical stage of the proceedings, defendant maintains the methods used in the confrontation here involved were so unfair as to violate the 'due process' clause of the Fourteenth Amendment.

Traditionally, the due process clause of the Fourteenth Amendment has been recognized to yield a direct general principle of control of State governmental action which anteceded, and is theoretically separate from, the explicit delineations of those amendments contained in the Federal Bill of Rights which, in recent years, indirectly, through incorporation into the due process clause of the Fourteenth Amendment, have become additional minimal standards by which State action is monitored.

This long standing principle of fundamental 'due process of law' can affect the validity of a State prosecution if action of State law-enforcement officials, in relation to evidence used in the prosecution, is held to fail to 'respect certain decencies of civilized conduct' and, therefore, to be 'methods that offend 'a sense of justice. " Rochin v. California, 342 U.S. 165, 173, 72 S.Ct. 205, 210, 96 L.Ed. 183 (1952).

In 1952, Rochin itself had pointed to the earlier origins of the principle when it said:

'It has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained. This was not true even before the series of recent cases enforced the constitutional principle that the States may not base convictions upon confessions, however much verified, obtained by coercion.' (pp. 172, 173, 72 S.Ct. p. 210)

In this statement Justice Frankfurter writing for the Court majority in Rochin surely had in mind the decision, and concepts utilized to reach...