State v. McConvey

• Citation: 459 A.2d 562
• Parties: STATE of Maine v. Stanley McCONVEY.
• Decision Date: 26 April 1983
• Court: Maine Supreme Court

Page 562

459 A.2d 562

STATE of Maine v. Stanley McCONVEY.

Supreme Judicial Court of Maine.

Argued March 17, 1983.

Decided April 26, 1983.

Michael Povich, Dist. Atty. (orally), Machias, for plaintiff.

Brown, Tibbetts, Churchill & Romei, Robert E. Tibbetts (orally), Calais, for defendant.

Before McKUSICK, C.J., and GODFREY, NICHOLS, CARTER, VIOLETTE and WATHEN, JJ.

CARTER, Justice.

The defendant, Stanley McConvey, appeals a judgment of conviction on two counts of vehicular manslaughter, Class C, 17-A M.R.S.A. § 203(3) (1983) entered after a jury trial in Superior Court, Washington County. We address the defendant's contentions that (1) his second trial was barred by principles of double jeopardy and that (2) the presiding justice erred in admitting, as part of the State's rebuttal, the blood-alcohol test results allegedly obtained in violation of 29 M.R.S.A. § 1312 (1978). We affirm the judgment of the Superior Court.

A two-car collision which occurred on February 1, 1981 on Grand Lake Stream Road in Washington County resulted in the death of William and Annette Goode, the driver and the passenger of one of the cars. The defendant, Stanley McConvey, the driver of the other car, was subsequently indicted for two counts of vehicular manslaughter, Class C, 17-A M.R.S.A. § 203(3). On January 18, 1982, the first jury trial commenced. On January 21, 1982, at 12:52 p.m., the Superior Court charged the jury and sent it to deliberate. ¹ At 6:55 p.m after deliberating for six hours, the jury returned for further instruction. The first note from the jury read: "We cannot reach agreement. What do we do now?" The second note read: "May we break for supper?" Addressing the foreman, the judge stated: "My inquiry to you is whether or not you feel you are hopelessly deadlocked or, if we had your evening meal brought in to you and you were to continue deliberations, you might be able to reach a unanimous verdict." The foreman replied: "Your honor, at this point, we are 11 to one, and the last one had stated he will not change his mind." The justice then ordered the jury to return to the jury room to have their evening meal. The justice also encouraged the jury to continue deliberations.

Two hours later, at 8:50 p.m., the jury returned with a third note which read: "Your Honor, we, the Jury, are hopelessly deadlocked, none of us willing to change our minds." The justice proceeded to poll each juror separately. Each juror stated that the jury was "hopelessly deadlocked." The justice then declared a mistrial. The justice asked counsel to make a statement for the record. Both the prosecutor and defense counsel stated that they had not requested the mistrial and that they did not consent to or agree to the mistrial. Addressing the court, the prosecutor asked: "More in the language of State versus Linscott, is the Court basing its finding on manifest necessity for the declaring of the mistrial?" The court replied: "It does so find."

The prosecutor rescheduled the case for a second trial. The defendant then filed a motion to dismiss the indictment based upon the allegation that the second trial violated the prohibition against double jeopardy. Also, at that time, the State filed a motion in limine seeking to have blood-alcohol test results admitted in evidence. Denying the motion to dismiss, the Superior Court reasoned that the double jeopardy prohibition does not attach to a trial in which there is declared a mistrial by reason of manifest necessity. Addressing the motion in limine, the justice ruled that the test results were inadmissible as part of the State's case in chief in this second trial.

On July 26, 1982, the second trial began. The State's case in chief consisted of the testimony of the Chief of Police for the Indian Township Tribal Government, Norman D. Nicholson. The chief testified that the accident occurred at approximately 2:45 p.m. and that the defendant was immediately taken to the Calais Regional Hospital. The chief stated that when he arrived at the hospital at approximately 6:00 p.m., he found that the defendant was very irate and lucid and he noticed that the defendant was "smelling very strongly of alcohol." The chief further testified that he left the hospital and returned at approximately 7:30 p.m., at which time he found that the defendant was "still irate and still smelling strongly of alcoholic beverage." The chief stated that in his opinion the defendant was "highly intoxicated."

The State's case in chief also included the testimony of Mr. Barry Campbell, the licensed physician's assistant who attended the defendant. He also testified that the defendant was "greatly intoxicated." The State subsequently rested.

The defense introduced the testimony of two men, Francis Pike, Sr., and Samuel Clark, who were with the defendant during the evening of January 31 and during the morning of February 1, 1981. These men and the defendant were fishing at Grand Lake. They were all staying at Mr. Clark's camp. Mr. Pike and Mr. Clark testified that they saw the defendant have five or six drinks of rum and Coke during the evening of January 31. Mr. Pike and Mr. Clark both testified that they went to bed at 11:00 p.m. before the defendant did so. Mr. Pike testified that he saw the defendant drink a beer at noon on February 1. Mr. Pike further testified that the defendant was not under the influence of alcohol when the defendant left him at 1:30 p.m. on February 1.

The defense also consisted of testimony from Walter Durgin who saw the defendant during the early evening of January 31. Mr. Durgin further testified that when he saw the defendant on February 1, he took a few swallows of a drink of rum and Tab, a soft drink.

Finally, the defense called Robert Proulx, the ambulance attendant who took the defendant to the hospital. The attendant testified that at the scene of the accident the defendant had told him that he had drunk only a few beers. The attendant further stated that when he was close to the defendant's face, he could smell the odor of alcoholic beverage. The defense subsequently rested.

During rebuttal, the State requested that the blood-alcohol test be admitted in evidence. After hearing the voir dire testimony, the justice ruled that the test was admissible as rebuttal testimony. In making the ruling, the justice limited the testimony to a statement of the milligrams of alcohol per milliliter of blood, rather than a statement of a percentage of blood-alcohol content.

Mr. Campbell testified that at 8:15 p.m. the police department provided him with a vacutainer kit to perform a blood-alcohol test. He further stated that he then drew a sample of the defendant's blood. At the time Mr. Campbell drew the blood, he was not then certified by the State of Maine, Department of Human Services. Mr. Campbell explained that he did not know he had to have such certification. Mr. Campbell further testified that during his ten-year medical career, he had drawn from 10,000 to 20,000 samples of blood. While employed at the Calais Hospital, Mr. Campbell stated that he had used the vacutainer kit thirty to fifty times in administering the blood-alcohol test.

Dr. James Young, an analytical chemist, testified that there were 181 milligrams of alcohol for 100 milliliters of the defendant's blood. The prosecutor then asked the doctor if he had an opinion as to whether the five or six drinks consisting of rum and Coke plus the one beer that the defendant drank were consistent with the blood-alcohol level at 8:15 p.m. of 181 milligrams of alcohol for 100 milliliters of blood. The doctor replied that he did have such an opinion and it was that the evidence was inconsistent. The prosecutor then asked the doctor "what would you consider a consistent blood-alcohol level to have at 8:15 given not only that, but the time frame?" The doctor replied that it "should have been zero, zero, zero."

On July 28, 1982, the jury returned a verdict of guilty on both Counts I and II. On September 3, 1982, a judgment of conviction was entered on those counts. The defendant was sentenced to serve two years at the Maine Correctional Center with all but four months suspended as to each count.

I. Mistrial

The defendant contends that the trial justice at the first trial erred in ruling that the jury was deadlocked justifying a mistrial by manifest necessity. The defendant, therefore, argues that the double jeopardy prohibition of article 1, section 8 of the Maine Constitution and fifth amendment of the United States Constitution attached during the first trial and therefore the second trial violated such a right.

The double jeopardy clause constitutes a general prohibition against the State subjecting a defendant to a second trial. The double jeopardy proscription, however, does not bar further proceedings following a mistrial declared by manifest necessity based upon the trial justice's decision that the jury is unable to reach a verdict. ² United States v. Perez, 9 Wheat 579, 580, 6 L.Ed. 165 (1824); Henderson v. Wright, 533 F.Supp. 1373, 1375-76 (D.Me.1982); State v. Commeau, 438 A.2d 454, 456 (Me.1981); State v. Henderson, 435 A.2d 1106, 1108 (Me.1981); State v. Linscott, 416 A.2d 255, 258 (Me.1980). The trial justice is permitted to exercise broad discretion in determining whether the jury is deadlocked. ³ Henderson, 435 A.2d at 1108; Linscott, 416 A.2d at 260. By granting a trial justice such discretion, the law seeks both to prevent a defendant from a deprivation of his right to a verdict from a particular jury and to protect a defendant against a verdict resulting from pressures which emerge during long and exhausting deliberations rather than from the jurors' collective judgment. See Washington, 434 U.S. at 509, 98 S.Ct. at 832, 54 L.Ed.2d at 730. The trial justice is in the best position to weigh all the considerations to determine whether the jury may reach an impartial verdict. See United States v. Gordy, 526 F.2d 631,...