State v. Lindsey

• Decision Date: 18 April 1979
• Citation: 400 A.2d 368
• Parties: STATE of Maine v. Sanford S. LINDSEY.
• Court: Maine Supreme Court

Page 368

400 A.2d 368

STATE of Maine v. Sanford S. LINDSEY.

Supreme Judicial Court of Maine.

April 18, 1979.

Michael E. Povich, Dist. Atty., Bronson Platner (orally), Asst. Dist. Atty., Ellsworth, for plaintiff.

Stephen D. Foster (orally), Ellsworth for defendant.

Before McKUSICK, C. J., and POMEROY, ARCHIBALD, DELAHANTY, GODFREY and NICHOLS, JJ.

NICHOLS, Justice.

Following a jury verdict in the Superior Court in Hancock County on September 13 1978, the Defendant, Sanford S. Lindsey, was convicted on three counts of burglary (17-A M.R.S.A. § 401). The Defendant appeals from the judgment of conviction, raising two issues in this Court. He asserts that (1) the presiding justice erred in refusing to grant a mistrial at his request when two jurors indicated to the court that they recognized one of the State's witnesses after he had testified and (2) the evidence was insufficient to support the verdicts.

We sustain the appeal in part, concluding that the evidence was insufficient to support a conviction on one of the three counts of burglary.

On the shore of Graham Lake, in Ellsworth, were four camps owned, respectively, by Sheldon Richardson, Timothy Manning, Eugene A. Flowers and, his son, Eugene R. Flowers. The senior Flowers kept watch over his neighbors' camp during their absences from the lake.

On September 20, 1977, Eugene A. Flowers observed that a break had been made into the camp of Sheldon Richardson. He promptly notified the Ellsworth Police, who came, inspected the damage and checked the other adjacent camps. Richardson's camp then was boarded up and secured.

Two days later Flowers observed two persons at the Richardson camp, beating against the door of the shed next to the principal building. Flowers quickly left to notify again the Ellsworth Police. Upon his return he discovered that breaks had been made, not only into the Richardson camp but also into the camps of Timothy Manning and Eugene R. Flowers.

The police responded quickly to Flowers' report. On arriving at the lake, Officer Ernest Fitch went directly to the Richardson camp. Finding it deserted, however, he moved off in the direction of the Manning camp. On his way there he discovered the Defendant and Edward Bodge walking within six or seven feet of the Manning camp and between the house and a tool shed. He ordered the pair to halt.

Officer Fitch testified that the Defendant was carrying two rectangular objects, one of which proved to be a torch kit. Edward Bodge, he said, was carrying a green knapsack which contained various household items. The officer stated that after a careful recital to the Defendant of the constitutional rights of an accused (which rights the Defendant waived), the Defendant declared, "So what? We have been into every camp up here, but who doesn't break into camps?"

A search of Bodge by the officer disclosed a drill box and a screwdriver with a broken red plastic handle. Pieces of this handle were later found at the camp of Sheldon Richardson. The items in the green knapsack, as well as the torch kit and drill box, were identified by their owners as coming variously from the Manning and Richardson camps. Breaks had been made into both of these camps. The lock on the camp of Eugene R. Flowers had been broken; however, no property from this camp was recovered in the possession of the Defendant or in the possession of Bodge.

When the Defendant took the stand, he contradicted much of this officer's testimony. He declared his own innocence, testifying that he was walking near these camps while going from his house trailer to his truck, which had broken down not far away. He said the knapsack had been found on the side of the road shortly before Officer Fitch saw them. He stoutly denied making the statement attributed to him by that officer. He also denied carrying any boxes. Finally, the Defendant described the loss from his truck of a CB radio, chain saw and tool box on that same day, implicitly suggesting the presence in the area of other potential camp burglars.

We now address the first issue raised by the Defendant on appeal.

During the afternoon of the first day of the trial two jurors, who during their Voir dire examination earlier had not recognized the name of Timothy Manning, sent notes to the presiding justice, each stating that when Manning testified, he had recognized him. One juror knew Manning by sight but had never formally met him. The other had been in college with this witness about thirteen years earlier. Both jurors stated this recognition of a witness would not affect their ability to return a fair verdict. The Defendant, nevertheless, promptly moved for a mistrial and further requested an opportunity to question Manning about his acquaintance with these two jurors. Both requests were denied.

The Defendant asserts that a refusal to grant a mistrial, when at this juncture two jurors recognized one of the State's witnesses, constituted prejudicial error.

Such a motion for a mistrial is addressed to the sound discretion of the presiding justice.

But such a motion should be granted only when taking all the circumstances into consideration there is an urgent, manifest and imperious necessity mandating a mistrial in the furtherance of justice.

State v. Gagne, Me., 349 A.2d 193, 198 (1975); See also State v. Hachey, Me., 278 A.2d 397, 403 (1971). Under this standard we find no error in the denial of a mistrial here.

In the case before us neither juror indicated any substantial or recent relationship with the witness and both professed continuing impartiality. The Defendant did not at this...