State v. Lund

• Decision Date: 22 June 1970
• Parties: STATE of Maine v. Howard LUND, Jr.
• Court: Maine Supreme Court

Page 869

266 A.2d 869

STATE of Maine v. Howard LUND, Jr.

Supreme Judicial Court of Maine.

June 22, 1970.

Appeal from Superior Court, Lincoln County.

Richard S. Cohen, Asst. Atty. Gen., Augusta, for State.

James Blenn Perkins, Jr., Boothbay Harbor, for defendant.

Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE, WEATHERBEE and POMEROY, JJ.

WILLIAMSON, Chief Justice.

The defendant Howard Lund, Jr. was convicted of the murder of Jane Kennedy (or Jane Lund), whom we will refer to as the defendant's wife, by a jury in Lincoln County Suprior Court in 1968. His appeal presents four basic issues, as follows:

(1) Inadequacy of counsel at trial;

(2) Obvious errors at trial;

(3) Unlawful search and seizure and other errors at trial;

(4) Failure to grant a new trial on ground of newly discovered evidence.

After the trial and filing of an appeal, the defendant became dissatisfied with the services of his court-appointed counsel and sought his dismissal from the case. The Court granted counsel's request to withdraw, and appointed present counsel, who has carried forward the motion for new trial on the ground of newly discovered evidence and the appeal.

No appeal from denial of defendant's motion for a new trial on the usual grounds was taken by trial counsel. We deem it proper, nevertheless, to review the entire record under the rule applicable to review in order that we may pass on the points of appeal with better understanding.

'On appeal, where no exceptions are reserved, the only question before the court is whether, in view of all the testimony in the case, the jury is warranted in believing beyond a reasonable doubt, and therefore in finding, that the respondent committed the crime alleged in the indictment.' State v. Hudon, 142 Me. 337, 52 A.2d 520; State v. Mulkerrin, 112 Me. 544, 92 A. 785.

The jury could properly have found as follows:

The defendant and his wife came to Wiscasset in early June 1968 and rented a camp on June 6 on Willow Lane Road. The body of Jane Lund wrapped in aluminum foil insulation was found in a shallow grave with a sheet metal covering in a wooded area over eighty feet from the camp. Jane Lund had been killed by a rifle bullet. No trace of powder appeared on the sweater covering the body and through which the bullet passed.

On June 13 the defendant stated to two officers that his wife had left home with a man. He made arrangements for the daily care of his infant child. No search for her was undertaken. The defendant told officers on June 15 in substance that he preferred that a missing persons bulletin not be put out. On June 18 at the request of the defendant, the sheriff's department investigated his complaint of a shooting at his home. At about one o'clock on the same day the body was discovered.

Jane Lund was shot and killed in the Lund camp in the presence of the defendant and the infant. The defendant buried the body of his wife in the hidden grave.

The defendant testified that his wife committed suicide. There was ample evidence negating the possibility of self-destruction.

'A careful review of the record shows sufficient evidence upon which the jury was justified in returning a verdict of guilty.' State v. Mottram, 155 Me. 394, 156 A.2d 383.

(1) Inadequacy of counsel at trial

The issue of inadequacy of counsel at trial is not properly before us on appeal. No complaint was made at trial by the defendant or until after the filing of an appeal. Counsel, charged with incompetency by the disappointed defendant, as is so often the case, has had no opportunity to defend himself. Further, the record is not complete for decision on a charge which touches the ability and adequacy of performance of a member of the Bar. 'If we were to consider the point now, counsel, whose professional ability and integrity are impugned, would be afforded no opportunity to be heard.' Harris v. State, 2 Md.App. 408, 234 A.2d 781.

The defendant is not hereby prejudiced against raising the issue in post-conviction habeas corpus proceedings.

(2) Obvious errors at trial

The defendant, in his second point of appeal, 'relies on Rule 52(b) that the Supreme Court will note and act on the obvious errors or defects affecting the substantial rights of the Appellant as noted under point 1. dealing with inadequate representation be regarded as adequate or inadequate by the Supreme Court thereunder.'

Rule 52(b) M.R.Crim.P. reads:

'(b) Obvious Error. Obvious errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.'

The rule is applicable 'where, and only where, manifest error in law has occurred in the trial of cases and injustice would otherwise inevitably result, * * *' State v. White, Me., 217 A.2d 212, 213; State v. Boisvert, Me., 236 A.2d 419; 3 Maine Pract.Rules (Glassman) § 52.3.

The 'obvious errors' of which defendant complains are stated in the first point of appeal in terms of inadequacy of counsel at trial. We are forced therefore to restate the complaints in terms of 'obvious error'. For example, as inadequate representation, the complaint is the failure to object to a hypothetical question on voir dire. As 'obvious error,' it becomes the admission of the question and answer. Similarly, the other complaints must be cast in different terms.

It is unnecessary, in our view, to rehearse in detail the thirty-five complaints of obvious error at trial. We have carefully reviewed the record and here do no more than discuss the complaints in summary fashion.

The State inquired of each prospective juror on voir dire in substance whether assuming circumstantial evidence of the commission of murder by the defendant sufficient under instructions of the judge to convict, the juror would be deterred from convicting the defendant in the absence of eye-witness evidence.

The State sought by the question to ascertain the bias, if any, of the juror against a particular type of evidence. Obviously in the question the State made it apparent that the State's case might rest on circumstantial evidence.

The question was unobjectionable. The defendant could not be harmed by an inquiry which might disclose an unwillingness to 'take the law' from the presiding Justice.

A deputy sheriff testified in substance that the defendant complained of a shooting at his camp, and that at defendant's request in company with another officer he made an investigation. The complaint and request were made before the authorities had knowledge of the death of Jane Lund, and before suspicion of any criminal act attached to the defendant.

Surely it would be a strange rule that on a request of X to the police for investigation of an incident at his home, the police must notify X of his right to refuse permission to make the investigation, and X must be shown to have waived counsel. Failure to object to the evidence on these grounds is precisely the basis of defendant's charge of incompetency, and so likewise is the basis of the complaint of obvious error. Cases cited by the defendant in which the police sought consent of the suspect are not in point. Schoepflin v. United States (9 Cir. 1968), 391 F.2d 390 (bank robbery-stolen goods); United States v. Barton (D.C.D.Mass.1967), 282 F.Supp. 785 (automobile trunk).

The defendant asserts 'obvious error' in the admission in evidence: (1) of the testimony of Mr. Haines, a detective on the State Police force, in support of his application for a search warrant; (2) of the testimony of two law enforcement officers for reasons applicable to Mr. Haines' testimony; (3) of the rifle and aluminum foil insulation as exhibits; (4) of certain testimony bearing on the establishment of the corpus delicti; (5) of the testimony of an expert pathologist on the ground of lack of qualification; (6) of a .22 bullet, a red sweater and a blue blouse taken from the body of Jane Lund; (7) of tests by a ballistics expert; (8) of exhibits taken from the premises of the defendant. The questions of evidence present no 'obvious error' under the rule.

The defendant further complains of a statement by the Court in the absence of the jury during a hearing on a motion to suppress evidence to the effect that custody of the defendant on an unrelated civil matter on June 18 before he was charged with murder had no bearing on the issue before the Court.

Many of the complaints of inadequate representation by counsel cannot, in our view, be turned into charges of obvious error. The defendant complains: (1) that counsel failed to move to suppress evidence before trial, although it appears that he did so with approval of the Court during trial, and (2) that counsel failed to argue and to develop evidence of lack of permission to search, of waiver, and of defendant's mental capacity to waive rights. Later in the opinion we discuss search and seizure, and hold there was no error.

Complaints of counsel's failure to rest after motion for verdict of acquittal at the close of the State's case, to renew the motion at the close of the case, and to have had recorded the opening and closing arguments of counsel for the State and the defendant require no comment. Plainly, they do not constitute 'obvious error' under our trial practice.

The complaint against counsel for failure to keep the defendant from the witness stand cannot be stretched and turned into an 'obvious error,' chargeable to the Court. It cannot be said to be a manifest wrong resulting in a miscarriage of justice for a jury to hear the defendant.

Whether it was the wiser course for the defendant to testify is another matter. We are not here concerned with the Fifth Amendment. The 'obvious error' rule was designed to ferret out error, and not to limit the search for truth.

Complaints of inadequate preparation by trial counsel are no more than particular complaints of inadequate representation. They are reached in post-conviction habeas corpus, and not in this appeal. The Court below did not err...