State v. Pritchett
| Decision Date | 14 March 1973 |
| Citation | 302 A.2d 101 |
| Parties | STATE of Maine v. Henry PRITCHETT, III. |
| Court | Maine Supreme Court |
John B. Beliveau, County Atty., Auburn, M. Kelly Matzen, Legal Intern, for plaintiff.
Platz & Day by J. Peter Thompson, Lewiston, for defendant.
Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, WERNICK and ARCHIBALD, JJ.
Charged with an unlawful sale of Heroin, the defendant Pritchett was convicted by a jury in March, 1972. His appeal raises several issues for review.
On January 14, 1972 counsel for defendant filed a motion for change of venue. This motion was denied on March 9, 1972. The defendant now contends that he was summarily denied the opportunity for hearing on this motion. The record fails to support this contention and fails also to demonstrate or even suggest that defendant was prejudiced in any way by retention of venue in Androscoggin County where the crime was committed.
In this case the grounds relied upon in support of the motion were specifically stated therein. 1 In such case, where material facts are not in dispute and the claims made become purely a question of law, decision can be made on the face of the motion and no fact hearing is required. Some contentions frequently made in support of a change of venue are best resolved by the results of voir dire examination when a jury is selected. Decision on a change of venue rests in the sound discretion of the Court. State v. Bobb (1942) 138 Me. 242, 252, 25 A.2d 229; State v. Hale (1961) 157 Me. 361, 366, 172 A.2d 631. These general observations have direct application to the disposition of this motion.
The first ground recited in the motion was: 'The Defendant is Negro and it will be impossible for him to obtain a jury of his peers in the County of Androscoggin.' This statement presupposes that the defendant is constitutionally entitled to be tried by a jury composed partly if not entirely of members of his race. That is not the law. In Swain v. State of Alabama (1965) 380 U.S. 202, 203, 85 S.Ct. 824, 826, 13 L.Ed.2d 759, the Court said, 'Although a Negro defendant is not entitled to a jury containing members of his race, a State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.' The defendant does not assert by his motion or in argument to us that any such 'purposeful or deliberate denial' could be shown to exist in Androscoggin County. The ground actually asserted and relied upon is without merit as a matter of law.
The second ground stated in the motion was as follows: 'The Defendant has knowledge that certain untrue rumors and stories have been spread about him within the County of Androscoggin, which rumors and stories have inflamed the minds of the public to the degree that it would be impossible to obtain a jury composed of citizens from the County of Androscoggin who would not be prejudiced by virtue of said untrue rumors and stories.' This allegation in reality says no more than that an unspecified number of unidentified citizens have been gossiping about the defendant, the exact nature of the gossip being either unknown or at least unstated. It is not every nebulous charge in a motion which compels or even warrants a hearing. The extraordinary growth of pretrial motion practice in the past few years has produced overcrowded dockets and greatly increased the burden placed upon the several Justices of the Superior Court. Practical necessity dictates the need of affording reasonable discretion in the way certain types of allegations inserted in pretrial motions are disposed of, else there will be insufficient time available for the conduct of jury trials to determine guilt or innocence. The allegation under consideration illustrates that need. A fact hearing to determine who said what to whom in a community of many thousands of people would be a fruitless and time consuming task. The true objective is to ascertain whether the potential jurors have acquired a bias or prejudice against the defendant or a fixed and settled impression as to his guilt or innocence. The effect, if any, of local gossip can best be ascertained by the examination of persons called for jury duty prior to their selection to try the defendant. With respect to this allegation no other 'hearing' was required.
The third allegation may be summarized. It states in effect that certain newspaper articles, copies of which are attached to the motion, covered 'a so-called drug raid' in the course of which defendant was arrested; and that these articles were of such a nature that 'it will be impossible for the Defendant to obtain a jury within the County of Androscoggin who will not have prior knowledge of the incident.' It must be noted at the outset that merely having knowledge of an incident is not the test for disqualifying a juror. Many jurors have such knowledge but have formed no fixed opinion as to the facts or as to the guilt or innocence of a defendant-and are not thus disqualified. Nevertheless, we have examined these newspaper articles and can say of them, as we did in State v. Berube, (Me.-1972) 297 A.2d 884, 886, that they 'met every reasonable standard of fair reporting.' The reporting was purely factual and conveyed no impression as to the guilt or innocence of the more than thirty persons arrested in the raid. Indeed, the newspaper stance was well summarized by a statement in an editorial in the Lewiston Evening Journal of January 8, 1972 reminding the reading public that By no stretch of the imagination could it be said that factual reporting of this type created a climate of hostility toward the defendant so infecting the community that he could not obtain a fair trial therein. Since the newspaper articles speak for themselves, no disputed facts were involved and no fact hearing was required.
The last ground relied upon in the motion is stated in these terms: 'The Defendant believes that because of the manner in which he was arrested that he will be associated with others who were arrested at the same time and that a finding of guilt against one of the others will be tantamount to a finding of guilt against him in the event the Defendant's jury or any part thereof, served as members of the jury on another charge against another individual who was arrested at the same time as the Defendant or within a matter of a few hours thereof.' The argument implicit in this allegation bears some similarity to contentions frequently made in support of a motion for severance or a motion for continuance. It lends no support whatever to a request for a change of venue. The anticipated difficulty is one properly disposed of by proper use of challenges after examination of the jurors or, if necessary, by a motion for continuance.
For the reasons stated we are satisfied that this motion could be decided upon its face without the necessity of a protracted fact hearing-and that it was decided correctly. The record discloses that on March 9, 1972 and before trial, the Court afforded counsel an opportunity, with a reporter in attendance, to take up the several pretrial motions then pending. There ensued an extended colloquy and discussion in the course of which defendant's pending motions, save only the motion for change of venue, were considered and several additional oral motions made and disposed of. The Court was not then informed that a fact hearing was desired or why one should be deemed necessary on the motion for change of venue. Indeed, no mention was made of that motion although final action was taken on it that day. Moreover, as we have noted, any prejudice from failure to change venue is most clearly demonstrated by voir dire examination. The defendant has not seen fit to make this examination a part of the record on appeal. We can therefore fairly assume that no prejudice was thereby revealed. The record does disclose that after a jury had been selected, the following colloquy occurred:
'The Court: Does the State have any challenge for cause?
Mr. Beliveau: No, none for cause.
The Court: Do you (counsel for defendant) have any challenge for cause?
Mr. Thompson: No.
The Court: Is the jury as now constituted satisfactory to the State, Mr. County Attorney?
Mr. Beliveau: Yes, your Honor, it is.
The Court: And to the defendant, Mr. Thompson?
Mr. Thompson: Yes, it is, your Honor.'
We conclude that there was no abuse of discretion denying defendant's motion for change of venue without a preliminary fact hearing and no prejudice resulted to the defendant from that ruling.
On January 14, 1972 the defendant filed a pretrial motion captioned 'Motion for Discovery, Inspection and Analysis of Evidence.' This motion contained numerous requests among which was the following:
'3. The Defendant has reason to believe that the State has in its possession or under its control certain material or compounds alleged to be a certain narcotic drug or drugs, to wit, Heroin and/or Cannabis Sativa L. The Defendant moves that this Honorable Court will:
a. Order the State to release to the Defendant, his attorney, or other person satisfactory to the Defendant a sufficient quantity of said alleged narcotic drug or drugs to permit a private chemical analysis thereof by a competent person of the Defendant's own choosing.' (Emphasis ours)
The motion was denied and defendant asserts that this constituted an...
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