State v. Trott

• Decision Date: 31 March 1972
• Citation: 289 A.2d 414
• Parties: STATE of Maine v. Larry M. TROTT.
• Court: Maine Supreme Court

Page 414

289 A.2d 414

STATE of Maine v. Larry M. TROTT.

Supreme Judicial Court of Maine.

March 31, 1972.

Peter W. Culley, William F. Gore, Asst. Attys. Gen., Augusta, for plaintiff.

William Talbot, Machias, Francis A. Brown, Calais, for defendant.

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

WEBBER, Justice.

Defendant appeals from a conviction of the murder of his grandfather, Charles H. Trott, a man 86 years of age. The jury could have found on the basis of direct and circumstantial evidence and reasonable inferences to be drawn therefrom that on October 1, 1968, the day before this homicide occurred, the defendant was without funds; that he was served with a summons in a divorce action instituted by his wife; that, angered by this action, he formed the intention to travel from Eastport to Calais, to purchase a gun and thus armed, effect a confrontation with his wife; that he felt the need of funds to defray the cost of travel to Calais and the purchase of the gun; that his efforts to borrow the requisite funds from friends were not successful; that on that same day the decedent Charles H. Trott cashed a check for approximately $95; that in the early morning hours of October 2, 1968 the defendant arrived at the home of the decedent who lived alone; that the defendant pounded on the door and sought admission which was repeatedly refused by the decedent; that in the course of pleading for and demanding admission, defendant informed his grandfather that he was drunk and cold; that defendant, still not having gained admission, finally said, 'You let me in or I will break the _ _ ¹ door down,' whereupon after more pounding the door was opened, the lights in decedent's home went out, and there was an 'ungodly screech'; that immediately thereafter defendant was heard to say, 'Grandpa, I didn't do it,' but the voice of the decedent was not again heard; that defendant then emerged and vomited after which he reentered the house; that shortly after, he again emerged carrying the inert body of the decedent over his shoulder; that he proceeded with it toward a wharf and the ocean; that defendant twice thereafter returned to decedent's home using the lights while he was inside; that defendant thereafter arranged to be taken by taxi to Calais where he spent the rest of the night in a hotel; that he paid the driver $10 for the fare and voluntarily gave him an additional $2 'to keep (his) mouth shut;' that he informed the driver that he had about $200 which he asserted had come to him from an unnamed friend from 'Washington'; that in Calais he displayed adequate funds with which to pay his hotel bill, to buy his breakfast and liquor during the forenoon, to purchase a gun and ammunition and to buy new clothes; that the body of the decedent was found floating in the water near the wharf on the morning of October 2; that shortly before his death the decedent had suffered bruises about the head and face and the fracture of nine ribs; that at least one of his pants pockets had been pulled inside out and the pants torn along the seam near the pocket; that no money was found on the decedent's person nor, in the course of an exhaustive search, in his home; and that the decedent was alive when he entered the water and that he thereafter drowned. No evidence was forthcoming from any source tending to suggest that the decedent was killed by the defendant while the latter was in the heat of passion produced by sudden provocation such as would be required to justify a verdict of manslaughter. The evidence therefore fully supports the jury's conclusion that the defendant was guilty of murder and indeed it is difficult to see how any other verdict was rationally supportable.

We turn now to other specific points of appeal. ²

'1. It was prejudicial error to allow David R. Clemons to serve as a jury officer since he was scheduled to be a witness for the State and did in fact testify.'

This issue cannot be raised for the first time on appeal. The controlling principle is set forth in Bennett v. State of Maine et al. (1965) 161 Me. 489, 492, 214 A.2d 667, wherein it was stated:

'Where objections to these alleged trial irregularities were not raised in the trial court, they must be deemed waived, and will not be considered for the first time on appeal. State v. Smith, 140 Me. 255, 37 A.2d 246. None can be classed as 'highly prejudicial' or 'well calculated to result in injustice' or otherwise so fundamentally unfair as to prevent an impartial trial or a true verdict based solely on the evidence and the law applicable thereto, where an exception to the above rule is permitted. State v. Smith, supra.' ³

When this trial was about to commence, the Justice below indicated to counsel and to the defendant in the absence of the jury that Mr. Clemons, a deputy sheriff assigned to duty as a jury officer, was to be called by the State as a witness but only as to continuity of control and custody of the decedent's body. The defendant and his counsel gave their consent to this procedure. The officer was later called and gave the anticipated brief testimony without objection. Subsequently, the presiding Justice had occasion to hold a preliminary hearing in the absence of the jury for the purpose of determining whether certain alleged admissions ⁴ might be admitted in evidence. Mr. Clemons was recalled and without objection gave evidence as to circumstances existing when defendant was interrogated by other officers, the giving of warnings as to constitutional rights and the like. The Court ruled that any evidence bearing on alleged admissions or confessions must be excluded and thus Mr. Clemons gave no further testimony in the presence of the jury. No objection was ever made to his continuing to serve as jury officer. No request for mistrial was made. There is no hint or suggestion, even on the part of the defendant, that there was any impropriety with respect to the officer's relations with the jury. The defendant's objection, if he had any, must be deemed waived.

In so saying, however, we do not wish to seem to lend any encouragement to the practice. Persons can and should be found to attend the jury who do not have such knowledge of the case as is likely to require their services as witnesses for either the State or the defendant. The relationship between attending officer and jury is necessarily a close and continuing one. At the very least, the use of such an officer as a witness is a fruitful source of time consuming argument on appeal or subsequent collateral attack on a conviction. At worst and under circumstances very different from those existing in the instant case, the problem can assume constitutional proportions and necessitate a new trial. ⁵ The better practice and in fact the only entirely safe course is to keep separate the roles of witness and jury officer.

'2. The Defendant was aggrieved by the refusal of the Court to grant his motion in arrest of judgment.'

No doubt recognizing that reasons advanced below in support of this motion were frivolous and devoid of merit, as indeed they were, the defendant did not brief or argue this point on appeal. We treat the point as abandoned.

'4. The Court erred in the instructions to the jury in indicating that there was more than one type of murder in Maine.'

This point is governed by M.R.Crim.P., Rule 30(b) which states in pertinent part:

'* * *. No party shall assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.'

In this case no objection was offered as required by the rule and the point is not saved on appeal. ⁶

'5. The Court erred in the instructions to the jury by charging that it is nurder if the killing happens while the defendant is engaged in committing a felonious act.'

The...