State v. White

• Decision Date: 07 January 1972
• Citation: 285 A.2d 832
• Parties: STATE of Maine v. John J. WHITE.
• Court: Maine Supreme Court

Page 832

285 A.2d 832

STATE of Maine v. John J. WHITE.

Supreme Judicial Court of Maine.

Jan. 7, 1972.

Joseph E. Brennan, County Atty., George Mitchell, Asst. County Atty., Portland, for plaintiff.

Thompson, Willard, Smith & McNaboe by Thomas R. McNaboe, Portland, for defendant.

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

POMEROY, Justice.

On July 15, 1964, John J. White, the Appellant herein, met a young man in a restaurant in Portland, Maine. As a result of events leading from this chance encounter, the Appellant has three times stood before a Traverse Jury charged by an indictment with having committed the crime of sodomy.

The first of the trials on the indictment resulted in a conviction, appeal from which terminated successfully for the Appellant because prejudicial misinformation had been brought to the attention of the jury on cross-examination of the then Defendant. State v. White, Me., 217 A.2d 212 (1966).

The second resulted in a mistrial.

The third is now before us for review on appeal.

The record reveals the second trial was commenced on May 31, 1966, and terminated in a mistrial ordered at Appellant's request. There is nothing in the record before us which explains what occasioned the mistrial beyond the cryptic docket entry:

'June 1, 1966. Motion by Defendant for Mistrial. Motion granted. Cont'd. day to day to June 9, 1966.'

The conviction which resulted from the third trial was reasonably appealed. The Trial Court appointed counsel to prosecute the appeal on behalf of the Appellant, after finding that the Appellant was indigent. Court-appointed counsel seasonably assigned 10 Points of Appeal.

Counsel has filed an excellent brief in support of these Points of Appeal which he considered 'primary' and has ably argued those Points before this Court. As is often the case, the Appellant determined that his own views as to the law should be presented to this Court and so he has filed his own brief pro se.

Most of the Points raised can be dismissed without extended discussion thereof.

The Appellant in his pro se brief argues the Court erred in denying his motion in arrest of judgment. The issues raised by this motion were raised, discussed and decided adversely to the Appellant in his previous appeal to this Court. State v. White, Me., 217 A.2d 212 (1966).

The denial of the motion for a new trial, of which the Appellant presently complains, raises substantially the same issues presented by other Points of Appeal which we find to be without merit as hereinafter discussed.

The Appellant in his pro se brief urges it was double jeopardy for him to be tried after the previous trial had terminated by withdrawal of the juror and the first trial had resulted in a new trial being ordered on appeal.

Suffice it for us to say, in deciding the Point, the ordering of the mistrial was in response to the defendant's motion by which he sought such result. We have repeatedly held a plea of former jeopardy is barred in such circumstance. State v. Slorah, 118 Me. 203, 106 A. 768, 4 A.L.R. 1256 (1919); Clukey v. State, 160 Me. 198, 202 A.2d 6 (1964); State v. Sanborn, 157 Me. 424, 173 A.2d 854 (1961). ¹ Thus, the issue he raises with regard to the previous mistrial constituting jeopardy is without merit.

That retrial after a successful appeal does not constitute double jeopardy is by now 'Hornbook' law, ² United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896).

The Appellant in his pro se brief complains that the Presiding Justice erred in charging the jury that force need not be shown to have been used, although the indictment alleged the use of force as an element of the crime.

The crime of 'sodomy' is included as part of the crime described by the statute as 'Crime against nature.' The statute is couched in these words:

'Whoever commits the crime against nature, with mankind or with a beast, shall be punished by imprisonment for not less than one year nor more than 10 years.' 17 M.R.S.A. § 1001.

Force is not an essential element of the crime of sodomy. As this Court said in State v. Langelier, 136 Me. 320, 8 A.2d 897, (1939):

'Although forms used in criminal procedure in this state have generally included the allegation of force in an indictment of this character, yet it being unnecessary of proof, an indictment which covers all the material statutory terms is sufficient. (Emphasis supplied)

It is likewise clear consent is no defense to a prosecution for sodomy. State v. Langelier, supra.

The evidence before us reveals that the alleged offense occurred in an automobile while the automobile was parked in Appellant's dooryard and later in a bedroom in Appellant's home.

After both the State and the defendant had presented evidence and each had rested, except for argument, the Appellant requested the jury be taken to view the automobile in which the act was alleged to have occurred.

The Presiding Justice denied his request. Appellant now says this denial was error.

The granting or denial of a request for a view is addressed to the sound discretion of the Presiding Justice. State v. McNaughton, 132 Me. 8, 164 A. 623 (1933).

As we said in State v. Fernald, Me., 248 A.2d 754, 758 (1968):

'This jurisdiction has for many years held that the purpose of a jury view in a criminal case is not to receive evidence but to enable the jury more intelligently to apply and comprehend the testimony presented in court.'

See also State v. McDonald, Me., 229 A.2d 321 (1967).

The Appellant wished to have the jury view an automobile which had been described to them by make and model. In view of the general familiarity with automobiles which all people have, we cannot understand how viewing this particular automobile would have enabled the jury 'more intelligently to apply and comprehend the testimony.' See, State v. McNaughton, supra.

We find there was no abuse of the Trial Justice's discretion.

On the night the acts of sodomy were alleged to have been committed one Paul Kunz, a friend of the Appellant, was lying down in the back seat of the automobile in which one of the alleged acts took place.

Kunz testified at the first trial, but at the time the second and third trials were held, he was in the custody of the State of New Hampshire.

The Appellant, in his pro se brief argues the Court erred in refusing to order Kuna be brought from New Hampshire to Maine to testify.

The statute which permits bringing a prisoner from another State to testify as a witness was not enacted in Maine until 1967 which was subsequent to the date of the Petitioner's third trial. 15 M.R.S.A. § 1463.

The statute which the Appellant cites, 15 M.R.S.A. § 1411, did not apply to a potential witness who was a prisoner of another State and held in custody in such sister State.

Kunz's deposition was taken. During the trial and preparatory to having the legally admissible portions of the deposition read to the jury, a hearing was held in the Presiding Justice's chambers without the presence of the jury to resolve the legal issues arising from the State's objection to portions of the deposition. The Appellant was not present in chambers, but he was represented by his attorney.

He now argues in his pro se brief that he was unconstitutionally deprived of his right to be present.

The extent of a defendant's right to be present at the various stages of his trial was exhaustively discussed in State v. Pullen, Me., 266 A.2d 222 (1970). It would serve no useful purpose to repeat that discussion here.

A defendant has the absolute right to hear everything the jury hears. He does not have 'a right' to be present when, outside the presence of the jury, discussion is had only concerning questions of law to which discussions the defendant could be expected to add little. Snyder v. Mass., 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934); State v. Fernald, Me., 248 A.2d 754 (1968).

We did say in Pullen and we repeat here that:

'We are of the view however that the better practice would be for the trial courts to hear such motions in open court in the absence of the jury. However, if in the sound discretion of the trial judge such motions should on occasion be heard in chambers, the better practice again would be to require the defendant's presence.' 266 A.2d 222, 228 (1970).

Here, as there, we hold that the defendant's absence from chambers when discussions were had as to rulings of law, did not constitute a denial of his constitutional right to a public trial and to be present at every stage of his trial nor a violation of Rule 43, Maine Rules of Criminal Procedure.

The Appellant elected not to testify at his trial. Concerning such failure the Presiding Justice in his charge to the jury said, in part:

'And so I charge you that you shall in no way consider the failure of this defendant to testify in his own behalf as in any way bearing upon his guilt.'

Although no objections were taken to this or any other portion of the charge, the defendant now argues that it was error for the Court to bring the defendant's failure to testify to the attention of the jury.

We have repeatedly pointed out that no allegation of error will be reviewed by this Court unless compliance has been had with the provisions of Rule 30(b), Maine Rules of Criminal Procedure.

Nevertheless we take this occasion to say that in any case in which the defendant does not take the stand to testify, the practice should be that the Presiding Justice instruct the jury that the failure to testify shall not be 'taken as evidence of his guilt,' unless the defendant specifically, and on the record, requests that the Court not allude to his failure to testify. See: 15 M.R.S.A. § 1315. See also: State v. Banks, 78 Me. 490, 7 A. 269 (1886).

The record before us reveals the trial with which we are presently concerned commenced on June 13, 1966, at 9:30 a. m.

The State offered the testimony of the person with whom the act of sodomy is...