State v. Sklar

• Decision Date: 21 March 1974
• Citation: 317 A.2d 160
• Parties: STATE of Maine v. David S. SKLAR.
• Court: Maine Supreme Court

Page 160

317 A.2d 160

STATE of Maine v. David S. SKLAR.

Supreme Judicial Court of Maine.

March 21, 1974.

Foahd J. Saliem, Asst. Atty. Gen., Augusta, for plaintiff.

Eames & Eames, by Richard S. Sterns, Skowhegan, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

WERNICK, Justice.

Pursuant to Rule 37A(b) M.R.Crim.P., this case has been reported by a Justice of the Superior Court for our decision of an important question of law thought to be involved in the Justice's interlocutory order that

'it appearing . . . that the offense of which the Defendant is charged is a petty offense and that he has no constitutional right to trial by jury, it is hereby ordered he be remanded to the Twelfth District Court, Division of Somerset, for trial without jury.'

The case had originated in the District Court on a complaint (dated October 10, 1973) charging defendant with having violated 29 M.R.S.A. § 1251 (as amended) in that, on October 2, 1973, he had operated a motor vehicle in the Town of Skowhegan at a speed (allegedly 65 mph) in excess of the speed limit established and posted by law (45 mph). ¹

On October 10, 1973, defendant purporting to act under 15 M.R.S.A. § 2114 (as amended effective October 3, 1973; P.L.1973, Chapter 520), ² declined

'in open court (to) waive in writing his right to a jury trial . . . and elect to be tried in the District Court at a hearing before the Judge of the District Court on a plea of not guilty . . ..'

The District Court Judge thereupon forthwith transferred the case to the Superior Court 'for arraignment and disposition.' The Superior Court's order of remand (as above described) followed on October 19, 1973. The effectiveness of the order was stayed pending decision by this Court.

The Justice of the Superior Court and the parties seek to achieve by the instant Report a decision by this Court whether Article I, Section 6 of the Constitution of Maine ³ guarantees a right of trial by jury to one accused of speeding, a violation punishable

'by a fine of not less than $10 nor more than $100, or by imprisonment for not more than 90 days, or by both'

and deemed, therefore, by the Justice of the Superior Court to be a 'petty', rather than 'serious', contravention of the criminal law.

At oral argument, a preliminary problem As oral argument, a preliminary problem arose whether the constitutional issue must be decided in the instant case.

The theory is that, arguably, the order of remand to the District Court can be shown erroneous on a ground other than defendant's asserted constitutional right to trial by jury; hence, this Court must, in any event, order the case to remain in the Superior Court for further proceedings. Since on the present record, the theory continues, it fails to appear that defendant had made a demand for jury trial in the Superior Court, he does not yet stand deprived in that Court of a right to jury trial, if any; and if in the further proceedings in the Superior Court defendant sees fit to waive his right to jury trial, if any, the constitutional issue will have disappeared. Thus, were this Court now to decide the question of defendant's constitutional right to trial by jury, the Court would be acting unnecessarily and prematurely.

Analysis discloses, however, that the foregoing line of reasoning is deficient and the issue of defendant's constitutional right to jury trial is here squarely presented and must be decided.

It is incorrect that an adequate ground independent of a determination of the constitutional issue may be found upon which the Superior Court's order of remand will be held erroneous.

The argument to establish such independent ground runs as follows. By its textual language 15 M.R.S.A. § 2114 plainly applies only to those criminal prosecutions in the District Court in which a right to trial by jury avowedly exists. Thus, whether inadvertently or otherwise, the Legislature has failed by virtue of 15 M.R.S.A. § 2114 to require as to any criminal prosecution in the District Court in which defendant lacks right to trial by jury that the case be fully heard and sentence imposed only by the District Court-with access to the Superior Court confined to an 'appeal' on 'questions of law and . . . sentence only' (as provided in 15 M.R.S.A. § 2114). This being so, to plug the potential gap which arises if there can be prosecutions in the District Court in which defendant will be without a right to trial by jury, 15 M.R.S.A. § 2111, dealing in general terms with 'appeals' from the District Court to the Superior Court, must be brought into play; and it must be considered to preserve in those prosecutions, if any, in which defendant lacks right to jury trial the practice by which, upon waiver of reading and hearing and plea of not guilty, defendant may 'appeal' to the Superior Court for a full hearing in the Superior Court in which the Justice of the Superior Court would act without a jury. Thus, this argument proceeds, if the instant prosecution be hypothesized, arguendo, as a prosecution in which defendant is without a right of jury trial, the obligation of the Justice of the Superior Court is to treat the purported 'transfer' as if it be an appeal' under 15 M.R.S.A. § 2111; and the Superior Court Justice should give defendant a full de novo hearing in the Superior Court, the Justice acting as the 'court' without a jury.

The infirmity of the approach is its facilely indulged premise that whenever a 'transfer of a prosecution from the District Court eventuates as incorrect, the 'transfer' becomes automatically transformed into an 'appeal' under 15 M.R.S.A. § 2111. That section, it must be emphasized, requires that the 'appeal' be taken by an 'aggrieved defendant' who has had a District Court 'judgment . . . rendered against him.' When a prosecution is 'transferred' under 15 M.R.S.A. § 2114 there will not have been any plea in the District Court by the defendant or a judgment rendered by the District Court against the defendant. The 'transfer' is to the Superior Court 'for arraignment and disposition' in the Superior Court. Thus, if in the present situation the 'transfer' is hypothesized, arguendo, as incorrect, 15 M.R.S.A § 2111 would not have applicability to authorize the Superior Court to hold the case as an 'appeal . . . from a judgment of the District Court.' The case would be in the Superior Court improperly, and the only appropriate action by that Court would be a remand to the District Court for further proceedings in the District Court to yield the judgment necessary before the Superior Court could consider the matter properly 'appealed' to the Superior Court under 15 M.R.S.A. § 2111.

The purported warning that this Court avoid decision of the constitutional issue is erroneous in a second respect. It will be recalled that it rested on the further premise that the present record fails to disclose a demand by defendant in the Superior Court for a trial by jury without which defendant cannot be said to have yet been deprived by the Superior Court of a right to a trial by jury.

This constitutes a misconception of the proper legal effect to be attributed to such 'silence' of the present record. Under 15 M.R.S.A. § 2114, as implemented by Rules 23 and 40, Maine District Court Criminal Rules (effective October 3, 1973 and applicable to the instant prosecution commenced in the District Court after October 3, 1973), it is clear that defendant is legally deemed to be demanding jury trial unless and until by affirmative action in writing he waives it. Defendant continues in this legal stance, as a person automatically demanding his right to jury trial, when he appears before the Superior Court by virtue of the District Court's 'transfer' of his case to the Superior Court until, 'with the approval of the Court', he waives his right to jury trial 'in writing'-as shown by Rule 23 M.R.Crim.P.

In the present instance, then, a 'silent' record establishes that defendant was affirmatively making a demand for jury trial in the Superior Court. Recognizing this legal posture of the defendant, the Justice presiding in the Superior Court immediately and explicitly (1) responded by denying that defendant had a right to jury trial insofar as 'the offense of which the Defendant is charged is a petty offense' and (2) implemented the denial by ordering the case remanded to the District Court (where no trial by jury may be had).

We must, therefore, reject the thought that defendant was nonetheless obliged to place on record a demand for jury trial, as affirmatively stated in the Superior Court, if he wished to preserve the issue of his constitutional right to jury trial for decision by this Court. This would be to require defendant to perform an obviously unnecessary, empty and futile act, the presiding Justice having already made explicitly plain that defendant had no right to a trial by jury and would be afforded no such trial (nor any trial) in the Superior Court.

On the present record, defendant is in the legal position of a person demanding trial by jury and deprived of it. The correctness or error, of the ruling of the presiding Justice in denying to defendant a trial by jury in the Superior Court, the denial being reinforced by a remand of the case to the District Court for trial without jury, thus posits squarely for this Court's decision the issue of the scope of the jury trial guarantee of Article I, Section 6 of the Constitution of Maine.

II.

The Justice presiding in the Superior Court could have believed, reasonably, that his conclusion that defendant had no constitutional right to trial by jury was supported by recent developments.

On May 20, 1971 the Justices of the Supreme Judicial Court of Maine answered, in an advisory opinion, a question propounded by the House of Representatives of the 105th Legislature, Opinion of the Justices, Me., 278 A.2d 693 (1971), whether a proposed 'ACT Permitting...