State v. Tibbetts

• Decision Date: 26 January 1973
• Citation: 299 A.2d 883
• Parties: STATE of Maine v. Vance G. TIBBETTS.
• Court: Maine Supreme Court

Page 883

299 A.2d 883

STATE of Maine v. Vance G. TIBBETTS.

Supreme Judicial Court of Maine.

Jan. 26, 1973.

John L. Merrill, Asst. County Atty., Skowhegan, for plaintiff.

Grossman, Faber & Miller, P.A. by Edward B. Miller, Rockland, for defendant.

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

ARCHIBALD, Justice.

This is an appeal by the defendant following a conviction for breaking, entering and larceny in the nighttime. 17 M.R.S.A. § 2103.

The appellant and one Patrick Eagan were separately indicted and, because the facts were identical, the two indictments were consolidated for trial. The propriety of this consolidation was originally challenged but that issue was not raised on appeal.

The appellant, in his statement of points on appeal, assigned eleven alleged errors. However, only six of these were urged as a basis for sustaining the appeal and we consider the others to have been waived. The appellant's brief states the issues in the following language:

'1. The Court erred in refusing to grant a motion for a mistrial based upon the County Attorney's contract with a juror during trial.

2. The Court erred in allowing testimony in reference to the possible stealing of a motor vehicle, such testimony being prejudicial to the Appellant.

3. The Court erred in refusing to grant a motion for a mistrial based upon the testimony of Linda Murray.

4. The verdict is contrary to the weight of the evidence and not supported by substantial evidence.

5. The Court erred in refusing to grant a motion for a mistrial predicated upon the County Attorney's closing statements to the jury.

6. The Court erred in charging the jury.'

We will consider these points in that order.

Point 1

The jury was not sequestered but the record clearly demonstrates periodic admonitions by the Justice presiding which, if complied with, would preserve the integrity of the jury from exterior influence during the course of the trial. During one of the noon recesses the County Attorney was seated at the table in a local restaurant, engaging in some general conversation with a friend. He belatedly realized that one of the jurors was seated at this same table but, beyond a very general reference to the trial, none of the conversation related to the pending proceedings. The County Attorney made an immediate report of the episode to the presiding Justice. The juror involved was summoned into chambers, admonished that he was under oath, and carefully examined by the Justice in order to determine whether any prejudice resulted from this inadvertent contact with the County Attorney. At this hearing the appellant was present, as was his counsel, and the Justice reached the conclusion that no prejudice had resulted from these facts.

The rule seems clear that while an inference of prejudice may arise from a conversation between a juror and an unauthorized person, it may be rebutted by clear and convincing proof produced by the State. The presiding Justice had discretion in ruling on this issue. State v. Duguay, 158 Me. 61, 178 A.2d 129 (1962). There is no reason why this rule should not apply to contact between a prosecuting attorney and a member of the jury. Stover v. District of Columbia, D.C.Mun.App., 32 A.2d 536 (1942). The record shows no abuse of judicial discretion.

Point 2

Although the indictment alleged only the burglarious larceny of a checkwriter, the State introduced evidence from which the jury could find that a red and black Chevrolet car was likewise stolen. On the several occasions when this motor vehicle was mentioned by the State's witnesses, the appellant registered an objection premised upon the philosophy that he was not charged with the larceny of a motor vehicle and, therefore, the evidence was not only irrelevant but highly prejudicial.

The chief witness for the State (Linda Murray) had testified that Mr. Tibbetts was motivated by a desire to leave the State and go to Florida. The jury could believe from her testimony that shortly before the crime was committed a Pontiac automobile which was being used by the appellant and Patrick Eagan became inoperable.

The testimony of Carl E. Peterson, the owner of the burglarized building known as Peterson's Auto Body Shop, clearly indicated that the Chevrolet car, the checkwriter, and a chekbook were missing from this structure. The owner had inspected the building at approximately 9:00 p. m. on February 7 and found everything secure. At. 7:30 a. m. on February 8 the break was discovered. The Chevrolet car was located before daylight on February 8, abandoned near the New Hampshire line in the town of Gilead, approximately one hundred miles westerly of Skowhegan.

It is clear to us that this evidence was properly admitted. It was relevant and material not only as direct proof that the crime was committed in the nighttime, but also to show the intent and purpose underlying the illegal entry. State v. Wyman, 270 A.2d 460 (Me.1970); State v. Smith, 277 A.2d 481 (Me.1971); State v. Sanborn, 157 Me. 424, 173 A.2d 854 (1961).

Point 3

Linda Murray quoted the appellant as saying that his wife 'had a warrant out' for his arrest. The type of warrant that the appellant referred to was not described, but it supplied the reason underlying the appellant's desire to leave the State of Maine. As such, this testimony was clearly relevant to indicate a motive for the commission of the crime alleged. No citation of authority is needed to support the admissibility of such evidence.

Point 4

Assuming (as we must) that the jury believed the testimony of Linda Murray, the verdict is supported by the evidence. The Justice below was entirely correct in refusing to grant a motion for a judgment of acquittal.

Mrs. Murray testified that on the evening in question she met the defendant and Patrick Eagan and accompanied them to a trailer in Skowhegan, where the Pontiac car in which they were riding became inoperable. She then stated that the appellant and Eagan left the trailer, returning some time later driving a red and black Chevrolet automobile, and having with them a checkwriter and a checkbook. She described Tibbetts and Eagan as making out numerous checks with the use of the checkwriter, which imprinted the name of the payor, 'Peterson's Auto Body Shop,' this being the structure allegedly broken and entered by the defendant. She further testified that they left this trailer in the Chevrolet, taking with them the checkwriter and checkbook, picked up another young lady (Rebecca Michaud) and drove to the New Hampshire line where the car was abandoned.

In the early hours of the following morning the police discovered the abandoned vehicle, and it was identified as belonging to Mr. Peterson. During a search of the snow covered area two days later, the checkwriter was likewise found and subsequently identified by Mr. Peterson as having been taken from his building on the evening in question. A search of the vehicle also disclosed ten checks imprinted with a checkwriter and identified by Mrs. Murray as being those checks written in the trailer by the appellant before leaving Skowhegan.

The State also offered the testimony of Linda Murray's husband who, while an inmate of the Somerset County Jail, talked with the appellant and Eagan. Although his testimony was somewhat ambivalent, ¹ the jury could have inferred from it that both Tibbetts and Eagan admitted stealing the automobile and the checkwriter.

Adopting the legal proposition that 'the possession of stolen goods subsequent to the theft creates inference of guilt, not only of larceny . . . but also of the breaking and entering when larceny is a part of such greater crime,' there was ample evidence to support the verdict of the jury. State v. Saba, 139 Me. 153, 158, 27 A.2d 813, 816 (1942); State v. Poulin, 277 A.2d 493 (Me.1971); State v. Gove, 289 A.2d 679 (Me.1972).

Point 5

The appellant did not testify. In his closing argument defense counsel argued strongly that the State should have produced additional witnesses, particularly Rebecca Michaud. In rebuttal the County Attorney made the following statements to the jury:

'Now I also want to submit this to you. Mr. MacMichael (defense attorney) has made much of the power and authority of the State to investigate, and the lack of witnesses here. Just let me tell you this, Ladies and Gentlemen, he has just as much power . . . to obtain each and every witness that he wants or needs, or they need or want, as the State does. So, if he's got any questions as to why certain witnesses weren't here, it's own fault, because he could have gotten them here as well as we.

And who, after all, Ladies and Gentlemen, knows what takes place at the scene of a crime? Probably those that have committed the crime, if you find that these two defendants did so do, know more about it than anyone else. Even the investigators. But that's a fact which you must find.'

If the County Attorney had terminated his rebuttal argument with the first quoted paragraph, there could be no objection. However, his use of the final four sentences raises the serious question of whether an impermissible reference was made to the fact that the appellant, by not becoming a witness, had exercised the privilege guaranteed him by the Fifth Amendment of the United States Constitution and secured to a defendant in Maine by Article 1 § 6 of the Maine Constitution, ² as implemented in 15 M.R.S.A. § 1315. ³ If we decide the County Attorney used constitutionally impermissible language, we must also determine if such use constituted harmless error.

Since in his charge the presiding Justice made clear the rights of the appellant and the duty of the jury to disregard his election not to be a witness, we might conclude that the issue here was settled by the decision in State v. Mottram, 158 Me. 325, 184 A.2d 225 (1962). Mottram would appear to hold that an ambiguous comment by a county attorney could be rendered harmless through...