State v. Stoddard

• Court: Supreme Judicial Court of Maine (US)
• Writing for the Court: Before DUFRESNE; POMEROY
• Citation: 289 A.2d 33
• Parties: STATE of Maine v. Robert D. STODDARD.
• Decision Date: 28 March 1972

Page 33

289 A.2d 33 STATE of Maine
v.
Robert D. STODDARD. Supreme Judicial Court of Maine. March 28, 1972.

Jonathan R. Luce, County Atty., Farmington for plaintiff.

Wathen & Wathen, by Daniel E. Wathen, Augusta, for defendant.

Page 34

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

POMEROY, Justice.

The indictment which brought this defendant before the Court alleged he did 'feloniously take indecent liberties with the sexual parts of one (name omitted), a female child who was then and there under the age of 16 years . . .' ¹

Trial was had before a jury in Franklin County Superior Court. Upon the jury's verdict of guilty, judgment of conviction was entered against the defendant. From that judgment defendant has seasonably appealed to this Court, raising 4 claims of error.

1) Defendant's pretrial motion for change of venue was erroneously denied.

2) The indictment should have been dismissed since the term 'indecent liberties' is used to describe various types of conduct and therefore lacks the required specificity.

3) It was error for the Presiding Justice to instruct the jury that a verdict of guilty of attempt was permissible if they found as a fact that the technical elements of taking indecent liberties were not established by the evidence.

4) The evidence was insufficient to support the verdict.

We must deny the appeal.

In support of the motion for change of venue, ² the defendant filed the affidavit of a private detective. This affidavit reported interviews of 7 persons from the Wilton, Maine, business community, all of whom claimed to be satisfied of the defendant's guilt.

The affidavit also indicated the existence of a rumor which had been heard by some of the 7 that there was prior involvement by this defendant with some similar offense.

A motion for change of venue is addressed to the sound discretion of the trial Court. In the absence of abuse of discretion, the decision of the Presiding Justice is final. State v. Beckus, Me., 229 A.2d 316 (1967).

Generally, in order to establish a denial of due process there must be a nexus shown between the community prejudice and an alleged jury prejudice. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

In some cases it has been recognized there can be such inherently prejudicial publicity prior to trial that an actual nexus need not be shown. Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). See also State v. Beckus, supra, and State v. MacDonald, Me., 229 A.2d 321 (1967).

In the present case, however, there is no claim of prejudicial pretrial publicity.

The record does not indicate whether any members of the jury were from Wilton, Maine. We do not imply that if such were the case, the mere presence of a juror from Wilton would manifest partiality requiring a change of venue, or that denial of a change would result in a finding of abuse of judicial discretion.

In the present case, defendant does not argue that the jurors who heard the evidence were actually not impartial. No objection was made to individual members of the jury as provided by 14 M.R.S.A. §

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1303. ³ There is no indication that the jury selection process which is...