State v. Warren

• Decision Date: 03 December 1973
• Citation: 312 A.2d 535
• Parties: STATE of Maine v. Rodney WARREN and Alton Phinney.
• Court: Maine Supreme Court

Page 535

312 A.2d 535

STATE of Maine v. Rodney WARREN and Alton Phinney.

Supreme Judicial Court of Maine.

Dec. 3, 1973.

David M. Cox, County Atty., Bangor, for plaintiff.

Ranger, McTeague & Higbee, P.A., by Patrick McTeague, Brunswick, for defendants.

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

ARCHIBALD, Justice.

The appellants, Rodney Warren and Alton Phinney, were secretly ¹ indicted by a Penobscot County Grand Jury for conspiracy (17 M.R.S.A. § 951). Although separately indicted the cases were ordered to be tried together because the appellants could have been jointly indicted. Rule 13, M.R.Crim.P. The initial jury trial was in October, 1971 but a mistrial was ordered and the appellants were subsequently found guilty following a second jury trial in January of 1972. Each has appealed from the ensuing judgments. We sustain the appeals and order a new trial.

FACTS

At the time of the alleged offense, appellants were officials of a meat cutters union embroiled in a long, bitter and well publicized labor dispute with a state wide chain of grocery supermarkets. The state's case against the appellants rested entirely on the testimony of one Frank Price. His recitation of certain conversations he had with both defendants and one Kevin Vickers Vickers, who was not indicted, although named in both indictments as a co-conspirator, was called by the state for the purpose of corroborating Price's testimony. Despite having been given complete immunity, ² Vickers stood on his Fifth Amendment rights and, before the jury, refused to testify. He was ultimately found in contempt of court.

comprised the state's case. Price, a newly appointed special deputy sheriff, had infiltrated the ranks of the striking labor union. He testified that on July 25, 1971, the appellants, along with Kevin Vickers, met with him in a specific Brewer motel room at which time and place it was agreed Price would plant a bomb in a Waterville supermarket affiliated with the state wide chain. Vickers, according to Price, undertook to procure dynamite and Price, for a fee of $50.00, was to manufacture, place and detonate the bomb, all with the acquiescence of both appellants.

In their defense both appellants presented alibi witnesses explaining their whereabouts on July 25th, 1971. Motel records were introduced showing that neither Phinney nor Warren were registered at the particular motel on the day in question. In addition, both appellants testified and not only denied their part in any conspiracy but also denied that they were even in Brewer on the day in question.

In rebuttal the state offered a Penobscot County deputy sheriff who testified that, on July 25, 1971, while conducting a surveillance of the Brewer supermarket then being picketed, he observed the presence of Rodney Warren and Kevin Vickers.

Counsel for appellants attempted to impeach the testimony of Price with his army psychiatric records but the court, after an offer of proof outside the presence of the jury, ruled them inadmissible. The principal issues raised as a basis for sustaining the appeal are these: ³

1. Erroneous denial of motion to dismiss the indictments because of prejudicial pre-indictment publicity.

2. Failure to instruct the jury correctly concerning its function in dealing with the statements made by Kevin Vickers to Frank Price tending to inculpate the appellants.

3. Refusing to grant a motion for a mistrial because, in the presence of the jury, Kevin Vickers twice refused to answer a question on the ground of self-incrimination.

4. The refusal to admit army psychiatric records offered as a basis for expert defense testimony tending to impeach the testimony of Frank Price.

ISSUE I

On September 17, 1971, a motion was filed demanding that the indictments be dismissed because prejudicial publicity generated by 'agents of the state' prevented 'the grand jurors from acting impartially on the question of indictment in this case.' An evidentiary hearing was held on September 22, 1971 and the motion was denied. The record discloses the following colloquy:

'(Appellants' Counsel): Your Honor, may it please the Court, at this time, on the same basis, I would move that the Court examine the Grand Jurors in camera regarding the effect of the publicity.

My request, Your Honor, is that you examine the Grand Jurors who sat on the indictments involved here regarding their state of mind and impartiality regarding the individuals in the indictments and the circumstances and that THE COURT: I recognize what you're quoting from under Rule 6, Annotation 3, I don't think your request is within the intendment of the rule no matter how far I stretch it. If you have any evidence you wish to offer, bearing on the lack of qualifications of any individual Grand Juror, or the state of mind of any Grand Juror, which prevented them from acting impartially, when that issue was raised, burden is on you to produce it and not me by questioning the Grand Jurors, as I understand the practice. Your motion is denied.'

you examine them generally for impartiality, and that you examine them in particular in regard to exposure to the particular issue of publicity in the media.

The rule in effect on the date of the hearing was in this language:

'If not previously determined upon challenge, a motion to dismiss the indictment may be based on objections to the array or on the lack of legal qualifications of an individual juror or on the ground that a state of mind existed on his part which prevented him from acting impartially . . .' (Emphasis supplied.) Rule 6(b)(2) M.R.Crim.P. ⁴

The evidentiary hearing consisted of the testimony of the Penobscot County Sheriff and the introduction of nine exhibits, consisting of newspaper, radio and television accounts which were circulated in Penobscot County at the time of the labor dispute in July and August, 1971. Included were two publicized interviews with the Sheriff, one on radio and the other on television.

A careful reading of these exhibits discloses that, with two exceptions, the reported releases were general in nature revealing that an investigation was in progress, that arrests had been made with the names of the persons arrested. They reflected facts as disclosed in the public record and could be characterized as objective reporting.

In two instances, we note less objectivity.

One issue of a Sunday paper published on August 8, 1971 carried a story which went beyond factual reporting suggesting details of the alleged conspiracy and elaborating on the role played by Mr. Price as an undercover agent.

The other instance was the report in a daily newspaper of an interview with the Sheriff which contained the following quotation:

'It's too damn bad that gangsters can come into Bangor and make bombs to put in markets and be more worried about their own heads. . . . (They) didn't care if they killed a child in the process of blowing up a grocery store. . . .'

The record is not clear whether this story was in the issue of July 16, 1971, or August 6, 1971, but the quoted excerpt appeared on an inside page and was published only once.

With the exception of one article which was published after the indictments were returned, all the exhibits appeared at least one month prior to the impanelment of the grand jury.

Since the appellants' counsel correctly assumed that the testimony of the Sheriff conjoined with the exhibits was an insufficient basis for granting the initial motion, ⁵ it is not necessary for us to discuss what type of pre-indictment publicity, if any, could be the basis as a matter of law for the dismissal of an indictment. Rather, the issue becomes whether, in view of the evidence, the Justice below abused his discretion Since Rule 6(b)(2) was drafted on the assumption that an indictment is subject to dismissal if a state of mind exists in sufficient members of the grand jury to render less than twelve of them incapable of 'acting impartially', we must consider (1) whether pre-indictment publicity may properly be considered as having the potential to do so and (2), if so, that the scope and nature of such publicity must be in order to justify a voir dire of the grand jurors who participated in returning an indictment.

in not allowing the individual grand jurors to be subpoenaed for the purpose of a post-indictment voir dire examination. ⁶

It would seem self-evident that a criminal defendant is entitled to an impartial jury, whether it be grand or traverse. We would be less than realistic if we did not recognize the inherent capacity of the media, in the exercise of their constitutional freedoms, to give wide coverage to newsworthy events. Public opinion undoubtedly is influenced by what is thus read, heard or seen. However, awareness of public happenings via the media does not necessarily result in the creation of a generalized public state of mind which prevents impartial consideration. It is only when certain excesses are indulged in that the potential for bias and prejudice become manifest. In such cases, voir dire of jurors becomes essential in the interest of justice. The existence of such an exigency and the scope of examination lies in the sound discretion of the trial judge. See, State v. Pritchett, 302 A.2d 101, 107 (Me.1973).

Under what circumstances does the exercise of judicial discretion mandate such a voir dire?

Consideration must be given both the quantity and quality of the publicity. Such questions as these might be asked: was the news coverage both intensive and extensive? Were the reports written, or otherwise presented to the public, in such a manner as to invidiously arouse in the public mind a sense of ill will or vindictiveness? Would the reception of such information from the media inflame the emotions? Or, on the contrary, were the reportings factual and straightforward news stories? We have not attempted to limit the items which a presiding justice may consider in...