State v. Lizotte
| Decision Date | 27 January 1969 |
| Parties | STATE of Maine v. Richard LIZOTTE. |
| Court | Maine Supreme Court |
Richard A. Foley, Asst. County Atty., Augusta, for plaintiff.
Berman, Berman & Simmons by Jack H. Simmons, Lewiston, for defendant.
Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, DUFRESNE, and WEATHERBEE, JJ.
On appeal from the denial of respondent's motion for a new trial and upon other points listed in the opinion.
Appellant was charged with breaking and entering in the nighttime of Cottle's Augusta Market, Inc., and larceny therefrom of property in the excess of the value of one hundred dollars. Based upon objections taken during trial, motions for acquittal and a new trial, which were denied, 20 points of appeal were recorded, which for briefing and argument were consolidated within nine issues which will be treated seriatim.
'1) Did the Court err in denying respondent's challenge to the array?'
The venire from which the trial jury was selected, was summoned under the provisions of 14 M.R.S.A. §§ 1254, 1255, which governed the selection of jurors prior to October 7, 1967. As of that date sections 1254 and 1255 were repealed and replaced by Chapter 336 of the Public Laws of 1967, enacted prior to July 7, 1967. The repealing and replacing act established new procedure for the calling and selection of jurors, among which were the requirements that municipal officers of the several municipalities should make, certify and file a complete list of registered voters of such municipality with the jury commissioners of their respective counties on or before June first of each year, that the jury commissioners should in July of each year select at random the names of a necessary number of persons to constitute a jury pool, summon those ultimately selected for jury duty by registered mail, and limit the serve of a juror to a period of not more than two weeks, except as necessary to conclude a case on which he was sitting.
Inasmuch as 8 terms of court convened in October, 1967, four on the first Tuesday (October 3), and four on the second Tuesday (October 10), the impracticability of some of the provisions of Chapter 336 became apparent. By Chapter 494 § 30 (P.L.1967) enacted at the same regular session of the legislature, it was provided that for 1967 the duties imposed upon the municipal officers and the jury commissioners might be performed 'at a time other than during June and July.' Later it was noted that due to the convention of terms of court on October 10th the mandate that jurors for that term be called by registered mail might not be timely. The Legislature at its first special session, October 2, 3, 1967, by Chapter 498 (P.L.1967) amended Chapter 336 to provide that prospective jurors might be called by registered mail, and by Chapter 510 (P.L.1967) amended the two week period of service to '15 days in which the jury actually reports to the court for duty.'
The October Term 1967 of the Superior Court for Kennebec County convened on October 3, 1967 and the venire for that term was called under the provisions of 14 M.R.S.A. §§ 1254, 1255, and was sworn on October 3, 1967. The first jury-considered case was on October 12, 1967, and the respondent was tried on October 30, 1967. Following arraignment on that date, appellant challenged the jury array because it had not been called under the provisions of Chapter 336, and because it had served longer than the time therein provided. The presiding Justice ruled that the venire was properly constituted, and proceeded to impanel a jury from it.
There was no error. The venire was formed and qualified under the law existing at the time of its formation. The period of service of such jurors was not limited.
The decision in People v. Lembke, 320 Ill. 553, 151 N.E. 535 (1926), urged upon us as controlling, is not apt.
'2) Did the Court err in refusing to allow the respondent's peremptory challenge of Juror #23, June Lucas?'
By the procedure adopted at this trial for the impaneling of the jury, twelve names were drawn frm the venire, following which, at side bar, challenges for cause were exercised, the vacancies thus created were filled, and thereafter peremptory challenges invited. The State had no peremptory challenges. Defense challenged two jurors peremptorily and indicated to the Court that when the vacancies caused by these challenges were filled, he might wish to exercise an additional peremptory challenge to one of those of the original twelve. He was advised by the Court that any challenges not then made to those among the twelve first drawn would not thereafter be allowed. Defense recorded an objection to the Court's prospective ruling, but thereupon exercised two more peremptory challenges. Subsequently, after the drawing of four additional names from the venire, to fill vacancies caused by the exercise of these challenges, these replacements being passed for cause, State passed on peremptory and defense counsel challenged Juror #23, one June Lucas, who was of those in the original drawing of twelve. The challenge was denied and objection noted.
Review of this issue involves interpretation of Rule 24, Maine Rules of Criminal Procedure (M.R.Crim.Proc.) and associated legislation. An accused is constitutionally entitled to an impartial jury. He is entitled to no more and can be required to accept no less. Among traditional methods to insure impartiality in a jury is the right to challenge, for cause or peremptorily, but '(t)he right of challenge is the right to exclude incompetent jurors, not to include particular persons who may be competent.' United States v. Chapman et al., 158 F.2d 417(2-4), 419 (10th Cir., 1947). See also Hanson v. United States, 271 F.2d 791(2, 3), 793 (9th Cir., 1959).
As to peremptory challenges, here in issue, '(w)here the subject is not controlled by statute, the order in which peremptory challenges shall be exercised is in the discretion of the court.' Pointer v. United States, 151 U.S. 396, 410, 14 S.Ct. 410, 415, 38 L.Ed. 208 (1894); followed in Philbrook et al. v. United States, 117 F.2d 632(1-5), 635 (8th Cir., 1941); Hanson, supra; United States v. Mackey, 345 F.2d 499(1), 502 (7th Cir., 1965); Tierney v. United States, 280 F. 322(1-4), 324 (4th Cir., 1922), cert. den. 259 U.S. 588, 42 S.Ct. 590, 66 L.Ed. 1077. See also State v. Pike, 49 N.H. 399, III p. 406 (1870); State v. Flint, 60 Vt. 304, 14 A. 178, 2. p. 184 (1888); Commonwealth v. White, 208 Mass. 202, 94 N.E. 391, 393 (1911); and Hicks v. State, 199 Ind. 401, 156 N.E. 548, 1st Col. 549 (1927).
In anticipation of our M.R.Crim.Proc., effective December 1, 1965, and thereafter prior to the time of this trial, there were statutory changes dealing with the impaneling of a jury, 1 so that at the time of the trial under review, the statute, 15 M.R.S.A. § 1258, read in pertinent part as follows:
Rule 24 M.R.Crim.Proc., 2 after providing for voir dire of the prospective jurors by Court and counsel, as a basis of challenges for cause, provided in 24(c) for peremptory challenges as follows:
* * *.'
Application of this statute and rule by judicial discretion met all that the accused could demand.
The presiding Justice elected, without objection (see Philbrook, supra, 2d col. p. 634 of 117 F.2d), to draw twelve prospective jurors and after the exercise of challenges for cause, and the filling of the vacancies so created, a panel of twelve was presented for peremptory challenges,-but for which this panel would have constituted the regular jury. This was the panel presented for comparative challenges. The record discloses that counsel had the benefit of questionnaires returned by the veniremen. See Browne v. United States, 145 F. 1, 7 (2d Cir., 1905). The acceptability of these twelve was determinable. The record does nos suggest that counsel did not have 'a list of the drawn prospective jurors prepared by the clerk.' While the rule established the order in which peremptory challenges were to be exercised, it did not thereby abrogate the inherent discretion of the Court to apply it. It was defense counsel's opportunity and obligation under the rule to exercise in his turn such challenges to this panel as he proposed. See Mackey, supra, I at page 501 et seq. of 345 F.2d in which Federal rule 24 was in issue.
There is nothing to suggest that the competency of Juror #23 underwent any change during the minutes between the Court's warning and the time the deferred challenge was offered. See McDonald v. State, 172 Ind. 393, 88 N.E. 673, 1st col. 675 (1909), and Annot. 3 A.L.R.2d 499, § 8, p. 513.
This procedure and ruling was fair to both sides.
'No defendant has a right to escape an existing mechanism of trial merely on the ground that some other could be devised which would give him a better chance of acquittal.' Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613(14), 1626, 91 L.Ed. 2043 (1947), reh....
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