State v. Therriault

• Decision Date: 31 December 1984
• Citation: 485 A.2d 986
• Parties: STATE of Maine v. Dennis THERRIAULT.
• Court: Maine Supreme Court

Page 986

485 A.2d 986

STATE of Maine v. Dennis THERRIAULT.

Supreme Judicial Court of Maine.

Argued Sept. 19, 1983.

Decided Dec. 31, 1984.

Janet T. Mills (orally), Dist. Atty., Auburn, for the State.

Berman, Simmons & Goldberg, P.A., William D. Robitzek (orally), Lewiston, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, VIOLETTE, WATHEN, GLASSMAN and SCOLNIK, JJ.

VIOLETTE, Justice.

Dennis Therriault was convicted of rape, 17-A M.R.S.A. § 252(a)(A) (1983), by a jury after a two day trial held on October 27 and 28, 1982. ¹ He appeals from a judgment of conviction entered by the Superior Court, Androscoggin County, on January 6, 1983, and assigns several points of error. Because we find that the presiding justice's refusal to admit in evidence an exculpatory police report offered by defendant constituted prejudicial error, we vacate the judgment of conviction. Although this issue is dispositive of the appeal, we find it necessary to discuss two of defendant's other claims of error: 1) that he was twice put in jeopardy for the same offense, and 2) that he is entitled to specific performance of a plea bargaining agreement he alleges was reached with the prosecutor prior to trial.

I. Facts.

The State's case was presented through the testimony of the victim, the victim's mother and a physician who examined the victim shortly after she complained of the rape. Defendant presented no witnesses, although he did attempt to develop his theory of the case, self-penetration, through cross-examination of the physician and his offer of the laboratory report.

The victim, an eleven year old girl, testified that on the evening of May 10, 1980, she babysat for her next door neighbors, defendant and his wife, in Auburn. At approximately 11:00 p.m. she fell asleep while lying on a mattress that had been placed on the floor in defendant's living room. Shortly thereafter, defendant returned home alone on his motorcycle. He entered the living room and sat down on the mattress next to the girl. When the victim got up to get her shoes, defendant pulled her back on the mattress and began kissing her. The victim testified that defendant unfastened her brassiere and removed her pants and underwear. According to the victim, defendant then penetrated her vagina with his penis three to five times.

At about this time, the victim's mother knocked at defendant's door. ² Defendant did not respond. After repeated knocking went unanswered, the mother entered the unlocked apartment and observed defendant exit the living room. She found her daughter seated on a chair in the living room in the process of putting on her sneakers. The mother testified that her daughter did not look well and acted peculiar. After being paid for babysitting, the daughter returned home with her mother.

The victim immediately went to the bathroom when she got home. There she discovered blood on her underwear. When she emerged from the bathroom, she asked her mother to fasten her brassiere. This request prompted further inquiry from her mother and resulted in the victim telling her mother and father about the rape.

Soon thereafter, the victim was transported to the Central Maine Medical Center in Lewiston where she was examined in the emergency room. The examining physician, John M. James, discovered that the victim had a fresh three or four millimeter laceration of the hymeneal ring. He testified that this finding was consistent with the victim's complaint of a recent rape and, given the history she related to him, he "felt that this girl had been sexually assaulted." The doctor also admitted, however, on cross-examination that the injury could have been self-inflicted. In addition, Dr. James testified that as part of the routine procedure performed at the hospital on persons who complain of rape, he and other hospital staff members took specimens from various parts of the victim's body for testing and comparison with any specimens that might be taken from the body of the accused.

II. Claim of Double Jeopardy.

Defendant was charged with rape in an indictment dated June 9, 1980. He was first tried before a jury in Superior Court, Androscoggin County, on July 8 and 9, 1981. The trial ended in a mistrial when the jury was unable to reach a verdict after deliberating for several hours. Defendant claims that his re-trial in October 1982, violated his right to be free from double jeopardy. Me. Const. art. I, § 8; U.S. Const. amend. V. We disagree.

The record of defendant's first trial reveals that the jury retired to deliberate at 11:25 a.m. on July 9, 1981. At 5:08 p.m., with the agreement of the prosecutor and defense counsel, the presiding justice sent the following note to the jury:

Mr. Foreman, is there a reasonable expectation that the jury might reach a unanimous verdict if permitted to deliberate longer?

At 5:18 p.m., the jury was returned to the courtroom and the following colloquy ensued:

THE COURT: Mr. Foreman, in response to my inquiry I have a note from you which indicates that you cannot arrive at a unanimous decision, and it appears that no amount of time has changed your jurisdiction [sic]; is that correct?

MR. FOREMAN: That's correct, Your Honor.

The presiding justice then stated that the failure to reach a verdict "indicates manifest difficulties" and discharged the jury. A conference followed in chambers regarding defendant's bail and the restoration of the case on the docket.

We note that at no time during these proceedings did defense counsel raise any objection to the manner in which the presiding Justice communicated with the jury and inquired of the foreman in open court on whether the jury was deadlocked or to the Justice's declaration of a mistrial on the basis of manifest necessity. Further, according to an affidavit sworn to by defense counsel, he stated that after defendant's first trial ended in a mistrial and on the same day, he made a plea bargaining agreement with the assistant district attorney who had prosecuted the case. On this record, we conclude that defendant consented to the mistrial and, consequently, cannot now claim he was twice put in jeopardy by his retrial. State v. Fredette, 462 A.2d 17, 20 (Me.1983).

III. Specific Performance of the "Plea Agreement."

Prior to defendant's second trial, defense counsel, on April 28, 1982, filed a motion with the Superior Court entitled "Defendant's Motion for an Order Requiring the State to Specifically Perform According to the Terms of its Negotiated Plea Agreement, or, in the Alternative for an Order Dismissing this Action." An affidavit stated that on July 9, 1981, the day defendant's first trial ended in a hung jury, defense counsel struck a firm plea bargaining agreement with the assistant district attorney who had prosecuted defendant. The agreement provided that in return for defendant's plea of guilty to a simple assault charge, a Class D offense, the State agreed to dismiss the charge of rape and would recommend a suspended sentence and probation. ³ The affidavit stated further that on March 17, 1982, over nine months after the plea agreement was reached, the district attorney advised defense counsel that the State would not accept a guilty plea to a less severe offense than Gross Sexual Misconduct (Class C) in exchange for a dismissal of the rape charge. ⁴ Defendant was unwilling to plead to the more serious charge. Although the affidavit states that defense counsel promptly made it known to the district attorney's office that his client wanted to plead to the simple assault "as soon as possible" after the agreement was reached, defendant never entered a guilty plea with the court.

The parties agreed that the motion be decided solely on the basis of defense counsel's affidavit. The motion justice ruled that even if the facts averred in the affidavit were true, defendant was not entitled to specific performance of the plea agreement since he had not pleaded guilty to the reduced charge nor demonstrated that he had relied to his detriment on the assistant district attorney's representations. Defendant argues on appeal that Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), requires specific performance of the unconsummated plea bargain in the instant case. ⁵ In Santobello, the Supreme Court endorsed plea bargaining as an "essential component of the administration of justice" which, if properly administered, "is to be encouraged." Id. at 260, 92 S.Ct. at 497-98. The Court's approval was based on a supposition of fairness in securing the plea agreement and the recognition that judicial acceptance of a plea agreement "must be attended by safeguards to insure the defendant what is reasonably due under the circumstances." Id. at 261-62, 92 S.Ct. at 498-99.

Any notion that Santobello stands as authority for defendant's position, however, was laid to rest in Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). In reversing an Eighth Circuit decision ⁶ that would have effectively precluded prosecutorial withdrawal of a plea proposal once a defendant's acceptance had been communicated to the prosecutor, the Supreme Court in Mabry stated that "[a] plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution." Id. --- U.S. at ---- - ----, 104 S.Ct. at 2546. Accepting as true, therefore, the facts stated in the affidavit filed by defendant's attorney in the present case, Mabry teaches that defendant had no enforceable right to plead guilty to simple assault in exchange for dismissal of the rape charge. Although the State made such an offer, defendant never pleaded guilty nor in any other way relied on the offer to his detriment. ⁷ The Superior Court committed no error when it...