State v. Linscott

• Decision Date: 01 July 1980
• Citation: 416 A.2d 255
• Parties: STATE of Maine v. Kenneth LINSCOTT.
• Court: Maine Supreme Court

Page 255

416 A.2d 255

STATE of Maine v. Kenneth LINSCOTT.

Supreme Judicial Court of Maine.

Argued March 14, 1980.

Decided July 1, 1980.

John Atwood, Dist. Atty. (orally), Rockland, for plaintiff.

Strout, Payson, Pellicani, Cloutier, Hokkanen & Strong by James Strong (orally), Rockland, for defendant.

Before GODFREY, NICHOLS, GLASSMAN and ROBERTS, JJ., and DUFRESNE, A. R. J.

GLASSMAN, Justice.

The defendant, Kenneth Linscott, appeals from a judgment of the Superior Court, Knox County, following a jury trial, adjudging him guilty of arson, 17-A M.R.S.A. § 802. The primary issue raised on this appeal is whether, by reason of two prior trials ending in mistrials, the defendant has been twice in jeopardy in violation of the double-jeopardy clauses of the Maine and United States Constitutions. We vacate the judgment of conviction.

On October 17, 1977, the defendant was indicted for arson for the burning of a barn in Thomaston, Maine. On May 2, 1978, a jury was drawn, and the trial took place the following day. The jury deliberated two hours and forty minutes and spent an additional half hour listening to a reading of certain trial testimony in response to its request. At that time, whether in response to a jury communication or on his own initiative is not evident, the trial Justice submitted a handwritten questionnaire to the jury and the jury checked the "yes" box in response to the question, "Are you hopelessly deadlocked and unable to agree upon a unanimous verdict?" At 6:40 p. m., the Justice declared a mistrial. The record does not show any participation by counsel in this decision.

On September 11 and 12, 1978, the defendant had a strong jury trial. After one hour and fifty-three minutes of deliberations and an additional twenty minutes spent on a jury question, the jury informed the court that it was unable to reach a unanimous decision. The court responded: "That being the circumstances (sic) we have no alternative but to remove it from your consideration. The Clerk will place it on the trial list."

On September 20, 1978, the defendant filed a motion to dismiss the indictment on the bases (1) of double jeopardy and (2) that because two juries had been unable to reach a decision a reasonable doubt as to the defendant's guilt was established as a matter of law. The motion was denied on January 12, 1979.

The defendant's third trial began on August 6, 1979. The evidence presented was substantially the same as that at the first two trials. On August 8, 1979, the jury returned a verdict of guilty, and the defendant was subsequently sentenced to three years in the Maine State Prison. The defendant then brought this appeal.

On January 28, 1980, pursuant to M.R.Crim.P. 39C and 57(a), the State filed a motion to strike three "exhibits" attached to the defendant's brief on appeal. The "exhibits" consist of affidavits of two jurors as to the votes for and against acquittal at the defendant's two previous trials and of a note from the court reporter at those trials, apparently to counsel for the defendant on this appeal, as to the circumstances surrounding the declarations of mistrials. On January 29, 1980, this Court ordered that motion argued in conjunction with the merits of the appeal. On February 14, 1980, the defendant filed a motion to supplement the record on appeal, pursuant to M.R.Crim.P. 39(h), to include in that record the above-noted "exhibits." At oral argument, the Court took these motions under advisement.

Considering first the motions relating to the exhibits, we deny the defendant's motion to supplement the record and grant the State's motion to strike. M.R.Crim.P. 39(h), like M.R.Civ.P. 74(e), grants to both the Superior Court and the Law Court the power to supplement the record on appeal "(i)f any difference arises as to whether the record . . . truly discloses what occurred in the Superior Court or if anything material to either party is omitted from the record on appeal . . . ." M.R.Crim.P. 39(h). These rules were generally intended to allow correction of omissions from, and misstatements of, proceedings which were a matter of record in the court below. See, e. g., Adams v. Alley, Me., 340 A.2d 201, 206 (1975). Affidavits of jurors reciting jury room proceedings, particularly when not obtained until after the filing of the appeal, do not fall into this category. Assuming, arguendo, such "evidence" is admissible at all, it cannot be presented for the first time on appeal. Finally, we cannot say that we find the affidavits in any way material to the issues before the Court. ¹

Turning to the double-jeopardy claim itself, we find that the propriety of the declaration of a mistrial in the first of the defendant's three trials is not properly before this Court. The defendant waived his claim with respect to this trial by his failure to raise the issue of double jeopardy either before or during his second trial. H. Glassman, Maine Practice, Rules of Criminal Procedure § 12.1 (1967); see United States v. Scott, 464 F.2d 832, 833 (D.C.Cir.1972), and cases cited therein, and 1 C. Wright, Federal Practice and Procedure § 193 (1969).

The defendant did file a motion to dismiss the indictment on the grounds of double jeopardy prior to the third trial. That motion was denied. Thus, the double-jeopardy claim with respect to retrial after his second trial is properly before this Court on appeal from the judgment of conviction entered after verdict in his third jury trial.

Both article I, § 8, of the Maine Constitution and the fifth amendment of the United States Constitution ² protect persons from being "twice put in jeopardy of life or limb" for the same offense.

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).

See also Arizona v. Washington, 434 U.S. 497, 503-04, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978).

Jeopardy attaches when the jury is impaneled and sworn or when trial begins before a judge. See State v. Slorah, 118 Me. 203, 208, 106 A. 768, 770 (1919); Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). Thus, there is no question that jeopardy attached at both the defendant's first and second trials.

Retrial of a defendant because of a mistrial resulting from a hung jury does not automatically violate the defendant's right to be free from double jeopardy. The classic statement of this principle was made by Mr. Justice Story:

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes . . . . United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824).

At the time of the hearing of the defendant's motion to dismiss, following the second trial, the Superior Court did not have a transcript of the second trial before it and the docket reflected only that the trial had taken two days but did not show the length of the jury's deliberations. It was conceded at oral argument before this Court that no evidentiary hearing was held on defendant's motion to dismiss.

The United States Supreme Court has noted that because of the importance of the protection afforded by the right to be free from double jeopardy and "the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one." Arizona v. Washington, supra, 434 U.S. at 505, 98 S.Ct. at 830. This approach of placing the burden on the prosecutor to demonstrate that retrial would not violate the defendant's right to be free from double jeopardy is consistent with the approach taken when dealing with other constitutional protections afforded defendants in criminal cases. For example, when dealing with the fourth amendment right to be free from unreasonable searches and seizures, upon a showing by the defendant that the search and seizure were made without a warrant, the State must bear the burden of showing the reasonableness of the search and seizure. E. g., State v. Heald, Me., 314 A.2d 820, 829 (1973). Similarly, when dealing with the fifth amendment privilege against self-incrimination, upon an assertion by the defendant that he has made incriminating admissions or confessions, the State bears the burden of establishing that the statements were not compelled and that there has been compliance with the Miranda requirements. E. g., State v. Collins, Me., 297 A.2d 620, 635-36 (1972). In cases involving the sixth amendment right to confrontation, before using prior reported testimony the State must bear the burden of showing the unavailability of the witness. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968).

In the instant case, at the time of the hearing on the motion to dismiss, the defendant made a prima facie showing of the applicability of the double-jeopardy provision of both the State and federal constitutions by the docket entries which revealed that the defendant had twice previously been tried for the same offense. It must be...