State v. MacDonald
| Decision Date | 28 April 1967 |
| Citation | 229 A.2d 321 |
| Parties | STATE of Maine v. Joseph R. MacDONALD. |
| Court | Maine Supreme Court |
Richard J. Dubord, Atty. Gen., Leon V. Walker, Jr., and Peter T. Dawson, Asst. Attys. Gen., Augusta, Lloyd P. LaFountain, County Atty., and Ralph H. Ross, Asst. County Atty., Alfred, for plaintiff.
William P. Donahue, Biddeford, for defendant.
Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, RUDMAN, and DUFRESNE, JJ.
At the conclusion of a protracted trial commencing on October 19, 1964 and ending on November 6, 1964, the respondent was found guilty of murder. A motion for new trial based on the usual grounds and including the assertion that the verdict was 'against the law' was seasonably filed with the justice presiding and was by him promptly denied. It is not shown by the record before us that any appeal was taken to the denial of the motion. We are now asked to review a number of alleged errors of law said to have occurred during the trial, all of which would normally and properly be raised by exceptions. No bill of exceptions was filed or allowed. The appellate procedure was governed by the law as it existed prior to the adoption of the Maine Rules of Criminal Procedure, effective December 1, 1965. R.S.1954, Ch. 106, Sec. 14 as amended; R.S.1954, Ch. 148, Sec. 30. The charge was murder. The respondent was indigent and represented by counsel appointed by the court. There was a very brief period after verdict when respondent was without counsel. On November 9, 1964, upon respondent's motion, counsel was appointed
to represent him on his 'appeal to the Law Court.' Thereafter the State, the respondent and the presiding justice dealt with the case as though an appeal had been taken. We therefore treat the matter as though an appeal had in fact been seasonably filed. As to matters ordinarily brought forward by bill of exceptions we apply the doctrine announced in State v. Wright (1929), 128 Me. 404, 148 A. 141 and followed in State v. Morin (1953), 149 Me. 279, 100 A.2d 657; State v. Rand (1960), 156 Me. 81, 161 A.2d 852; State v. Hathaway (1965), 161 Me. 255, 211 A.2d 558 and State v. White (Me.1966), 217 A.2d 212. We have accordingly carefully reviewed the record to ascertain (1) whether or not upon all the evidence a jury was warranted in finding the respondent guilty beyond a reasonable doubt, and (2) whether or not there were 'manifest errors of law' in the trial of the case and 'injustice would inevitable result, unless the verdict were set aside.' State v. Wright (supra).
At the outset the respondent moved for a change of venue, asserting that pretrial publicity was of such a nature as to render it impossible for him to obtain a fair and impartial trial in York County. This motion was denied. At the time of the murder of which MacDonald has been convicted, he was engaged in a bank robbery in South Berwick in concert with one Wayne Beckus. Though separately indicted and separately tried and convicted of the same murder, Beckus has upon his appeal raised the same issue with respect to venue based upon the same publicity. The reasons which prompted us to rule against Beckus upon this issue have equal application here. They are fully set forth in our opinion in State v. Beckus, 229 A.2d 316, filed simultaneously herewith and no useful purpose would be served by repeating them in this opinion. Suffice it to say that we find no abuse of the discretion of the presiding justice in denying respondent's motion for a change of venue.
After nine jurors had been accepted, it came to the attention of the presiding justice that one of these jurors had at some time in the past and in another state been the victim of a robbery or attempted robbery. All nine jurors were then carefully and privately examined by the court and counsel with the respondent present. The court then excused two of the jurors from further service and the respondent moved for a mistrial, which motion was denied. Although as already noted we are not aided by a bill of exceptions which would clearly state just how the respondent claims to have been aggrieved, we glean some understanding of his contention from the record and his brief. It appears that respondent voiced no objection to the removal of the two jurors from the panel. In fact we infer from the record that he approved of this action and would have objected to a contrary result. His theory seems rather to be that he had based his use of peremptory challenges on the assumption that nine jurors had been found acceptable, and that it became impossible for him to proceed to complete the panel with the peremptory challenges then remaining without suffering some prejudice. Although the two excused jurors were not shown to be biased or prejudiced or otherwise disqualified for cause, it is apparent that the presiding justice discharged them as for cause out of an excess of caution and in an effort to resolve every possible doubt in favor of the respondent. Moreover, he provided the respondent with two additional peremptory challenges over and above the number allotted by statute. The use of peremptory challenges by a respondent can never properly be based on any assumption that a juror who has been accepted may not later be excused for cause shown at any time before trial is begun. The 'trial' does not begin until the jury has been impanelled and sworn. State v. Slorah (1919), 118 Me. 203, 208, 106 A. 768, 4 A.L.R. 1256. The respondent cites no case in support of his novel and ingenious theory and none has been called to our attention.
The fundamental rule is that continuances and mistrials are within the sound discretion of the presiding justice. We look only to see if the action taken is in furtherance of justice. State v. Wardwell (1962), 158 Me. 307, 183 A.2d 896; State v. Hume (1951), 146 Me. 129, 78 A.2d 496. No abuse of discretion having been shown, the denial of the motion was clearly not a 'manifest error of law.'
In accordance with usual practice, the jury after careful instruction and under proper safeguards was permitted to take a view of the locus of the crime. R.S.1954, Ch. 148, Sec. 17 (now 15 M.R.S.A. Sec. 1260) provided that 'The court may order a view by any jury in a criminal case.' The respondent now suggests that this statute 'is in violation of both the Federal and State Constitutional safeguard.' The respondent offers no authority supporting such a startling legal conclusion and we are satisfied that none exists. It has long been universally recognized that a view may in appropriate circumstances aid a jury in understanding the evidence. The respondent has a right to be present and was so in this case. The jury was carefully instructed before the view was taken. In our view this contention of the respondent is devoid of merit and may be dismissed without further comment.
There was admitted over objection evidence of oral statements made by the respondent to the police during an interrogation conducted shortly after his apprehension and arrest. The ground of the objection is not of record and again we are not aided by a concise statement of the basis of alleged grievance such as would be found in a bill of exceptions. The respondent was first 'advised of his rights' by the officer. He was informed that he was under arrest and charged with armed robbery and murder. He was offered the use of a telephone to call 'anyone he desired to' and was specifically asked if he wanted to 'call (his) brother or an attorney.' He was informed that 'you don't have to talk to us' and that 'if you don't wish to talk to us, we will leave the room.' The respondent replied that he had no desire to use the telephone or to call anyone, that he was 'not guilty of anything' and that he 'wanted to know what this was all about.' During an interrogation which lasted for several hours except as interrupted for a 'lineup' in which respondent voluntarily participated and for the consumption of a meal, the respondent never deviated from his initial protestation of innocence and never admitted guilt or any knowledge of the events which transpired in South Berwick or elsewhere connected with or constituting the crime. In response to questions he gave an account of his activities before and during the time the crime was committed, his version being of course in the nature of an alibi. He indicated that he had been given a ride to Somersworth by a 'friend' but declined to disclose the name of this 'friend', saying that he would produce him 'when the time comes, when the right time comes.' The respondent had been hiding in the woods in Somersworth when apprehended by the police. His explanation for his flight and concealment was that while mingling with the crowd which had gathered in Somersworth he overheard someone say that 'a bank teller...
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