*1 McKUSICK, C.J., ROBERTS, Before VIOLETTE, WATHEN, GLASSMAN and Maine STATE of SCOLNIK, JJ. Robert DUMONT. SCOLNIK, Justice.
Supreme Judicial Court of Maine. (York jury Superior trial in After a Court Argued Sept. 1985. County) Robert Dumont was convicted of Decided March 1986. contact, unlawful sexual 255(1)(C)(1983), and sentenced to three Prison,
years in the Maine State with one years suspended. appeal, and one-half On sentence, challenges of the arguing de- prived him of due by considering relying confrontation affidavits in the course of the sentenc- two ing proceeding. deny We find no error and I. 4, 1984, the defendant was in-
On June single dicted for a incident of unlawful contact, 255(1)(C). sexual 17-A M.R.S.A. § trial, 18, 1984, jury On December after a guilty defendant was found charged. crime The central issue at trial the incident occurred. The whether year-old prosecutrix nine testified defendant, cook-out, attending a while friend, family put his inside her hands “private parts.” The shorts and felt her having touched the defendant denied ever child. February the court conduct-
On sentencing hearing at which the de- ed a present. The and his counsel were’ fendant to establish State offered three affidavits of its support circumstances in The State sentencing recommendation. provided copies of the affidavits to the had offering at some time before sentencing justice. The de- them to the justice’s considera- objected affidavits, stating: tion of the agree with certainly The Defense would Gregory Libby, Atty., Dist. David Gene important for the proposition that it’s Alfred, (orally), plaintiff. inquire the characteristics into Court However, the De- Saco, Papa- of the Defendant. (orally), James Eric B. Cote produce Portsmouth, N.H., prepared fense is tones, for defendant. *2 Ready, willing particular you are here. adult. Also act that able certainly which the testify State is able were convicted of is not the most serious on her to cross-examine own instance. unlawful sexual contact we have run way no great We know of to cross-examine run across—we across a deal of They clearly hearsay is, affidavits. are evi- this in this Court and as serious as it independent dence. We have no evidence many it is not as bad as that we see. reliability authenticity of their and we However, I noticed from the affidavit way cross-examining have no those prosecutrix] this is not a [the affidavits. happened one-time offense. This has ac- strongly object We to the introduction cording period her affidavit over a on that on of these and basis further beginning years six years when she was the basis that two of these affidavits going spring old and on until the of 1984. deal with that have no rele- words, inSo other this was not a one- particular pro- whatsoever to these vance spur unthinking time the moment act. ceedings. strongly So the Defendant act, repeated It’s a calculated act. It’s a object request does that the Court and that makes serious.
rule these affidavits inadmissible.
addition,
the other
that I
affidavit
justice
admitted
of the three affi-
two
have allowed into evidence for sentenc-
davits,
prosecutrix
ing purposes suggests
one
and the other
to me that [the
fourteen-year-old girl
prosecutrix]
only
who had testi-
was not
victim of
your
illegal
fied at trial. These affidavits stated that
unlawful or
So
advances.
aggravating
had on other
en-
the defendant
occasions
is a serious
circum-
gaged
aggravating
similar
conduct
to that for which
stance. The other
circum-
disputed
your
had
convicted. It is
I realize
been
stance is
lack of remorse.
innocent,
sentencing justice
you
you’re
that the
treated the affi-
claim that
but we
they
jury
people
davits as true and that
influenced his
had a
here of twelve
who
sentencing
very carefully
decision.
to the victim and
listened
very carefully
you
listened
sentencing justice
addressed the de-
their
only inference to be drawn from
fendant as follows:
they
is
convinced that
verdict
were
Mitigating
in your
circumstances
case
you
lying....
were
man,
you
good
are
family
are that
weighed
mitigating
circumstanc-
apparently,
family
and have a nice
aggravating circumstances
es and the
very supportive family and that
is to
here and I think
that I’ve heard defined
addition,
public
your
your
credit.
ser-
some-
aggravating
circumstances
your community
vice. The service to
outweigh
mitigating circum-
what
give you
And I
your
credit.
credit
stances.
that.
Therefore,
going
give you a
I’m
circumstances are the
prison term....
severity
particular
crime itself.
all,
quite young
child
First of
year sentence
imposed
He then
a three
any
you
time that
Defendant
years suspended.1
with one and one-half
—a
child,
justi-
picks
young
on a
that alone
II.
punishment. Because the
fies serious
merits,
discussing
Before
young
basically
child is
defenseless
illegality in the sen-
claimed
equipped
assault
note that the
simply not
to handle the
though
occurred on
prior
September
this incident
Even
1. For a crime committed
sentences,
sentencing
failed to
authorizing split
August
the statute
date,
argu-
At oral
proceedings subsequent
defendant’s consent.
obtain the
to that
Court,
the defendant
required
ment however before
the defendant consent to
imposed and
split
imprisonment
sentence
suspended
in excess of
consented
term
ground.
challenge
on this
(Supp.1984-
days.
does not
tencing process may
raised on direct
reliability
Factual
is assured in various
challenge
ways.
Defendant’s
by proba-
based
Information marshalled
the fact that
pre-sentence report
took
tion officer in a
pre-
hearsay
into account
information contained
sumed to be reliable because that officer is
affidavits,
in two
professional
in violation of his
consti
neutral
who
not been
“[has]
tutional
prosecute
confrontation and due
trained to
but to aid offenders.”
*3
such,
process.
York,
249,
As
it constitutes an attack
v. New
337 U.S. at
Williams
69
legality
sentencing
1084;
on the
proceed
Robbins,
see also Haller v.
cognizable
857,
(1st Cir.1969).
and is
appeal.
on direct
409 F.2d
859
See
Neverthe-
Farnham,
(Me.
887,
less,
process requires
State v.
479 A.2d
889
due
that the defend-
1984) (claim
sentencing justice
in
timely
ant be afforded a
examination of the
imposed
creased the sentence
opportunity
dispute any
because de
and an
to
fendant exercised his constitutional
facts contained therein.
See State Har-
508,
(Me.1985);
stand trial
appeal); dy,
considered on direct
489 A.2d
see also
985,
Palmer,
(Me.
Read,
858,
State v.
468 A.2d
United States v.
534 F.2d
859-
1983)
(9th Cir.1976) (sentence
(challenge to sentence on constitu
vacated when
grounds
cognizable
tional
allegations
held
on direct
trial court relied on
of defend-
addition,
appeal).
alleged infirmity,
activity
“the
ant’s involvement in “criminal
of a
law,
even if
appear
one of
must
affirma
severe
kind” but failed
afford the de-
tively from the
opportunity
explain
record.” State v. Farn
or refute
ham,
omitted).
information);
32(c)(3).
(quotations
A.2d at 889
F.R.Crim.P.
See
sentencing
ABA
justice’s
generally
Since the
consideration
Criminal
Standards for
of,
on,
18-5.4(a) (1980)(“Funda-
ap
and reliance
the two affidavits
Justice Standards
record,
pear
requires”
mental fairness
broad disclo-
of the man
...
derogatory
sure of all
information “in a
imposed
ner which the sentence
give
adequate oppor-
form sufficient to
properly
before the court on direct
rebuttal.”).
tunity for
sentencing justice
A
limited
is not
III.
considering
pre-
in a
information contained
argues essentially
The defendant
Frequently,
report.
sentence
information
process requires
persons making
due
is derived from first hand observation of
allegations
of unlawful conduct be
sentencing justice
the defendant
ob
allega-
to cross-examination where those
process.
tained as a result of the trial
See
tions are offered
State to enhance
41,
Grayson, 438 U.S.
United States v.
punishment.
50-51,
2610, 2615-2616, 57 L.Ed.2d
98 S.Ct.
regarding
Factual
the de
sentencing
(permissible
for
fendant’s
for which he has
sentence,
criminal conduct
fixing
give
considera
judge,
charged may
trial);
not been
be considered
testimony at
tion to defendant’s false
sentencing justice
Farnham,
(per
in order to obtain a com
priate procedures infor to ensure reliable be to cross-examination. Such largely mation are left to the discretion unnecessary delay in a rule would cause denied, cert. sentencing judge), sentencing proceeding and is not necessar L.Ed.2d ily required to ensure that the information (1974). We realize that several states have appro factually reliable. The considered adopted prohibitions against blanket in accomplish goal any priate procedure at a sen use testimonial evidence hearing, largely left to the tencing aggravat any given offered to show case should be circumstances, ing mitigating sentencing justice. or unless it is He is discretion of the open provide in offered court so as to position in to determine a far better opportunity defendant an to cross-examine. informa procedures be utilized factual See, (West e.g., Cal.Penal Code op disputed by party. § either One tion is 1982); (1974); N.D.Cent.Code 29-26-18 § he not consider the tion would be that (1981); Or. Okla.Stat.tit. information; possibility §§ disputed another (1983). courts, Rev.Stat. 137.090 Some offering require party would be that he similarly independent legislation, have open court present the information barred the use of information offered guiding The subject to cross-examination. or the unless either the State based a sentence must be principle is that presented open court. factual information. on reliable Simms, (1925); S.C. S.E. principles to Applying these A.2d 248 State Rice 145 Vt. did case, we find that present Maxwell, 328 S.E.2d considering the his discretion not abuse (W.Va.1985). The ABA Standards for furnishing to the defend affidavits without provide Criminal Justice in like fashion to cross-examine ant the parties offered information defendant or did the At no time affiants. court. ABA Standards open should be in accuracy or dispute the directly 18-6.4(b) his counsel Criminal Justice Standard for prior unlaw allegations of reliability (1980) (“The guiding principle should be incidents similar to the conduct opportunity for ful provision of an effective charged. which he was point Even at this which the defendant has never been charged the defendant does not contend convicted? believe it cannot. allegations are inaccurate or unreliable. sentencing process is the culmina- supported were by factual tion of a prosecution. A criminal provided in the form of sworn prosecution procedural is the vehicle affidavits. That information was neither which an legally individual can patently demonstrably unreliable nor false liberty. zealously To enforce our clearly and was relevant as indicative throughout continuing procedure course of leading up conduct over a sub- deprivation period liberty stantial and then to of time. abandon them See State v. at that point, produce critical is to O’Donnell, result at 803. It thus assist- clearly signals a sys- radical defect in the ed the in making court an individualized justice. tem of assessment of the defendant’s rehabilita- prospects tive as well as protect the need to guidance There is little afforded stat- society.2 circumstances, In these we find ute or rule as to specifics the form or no error. information that can be received and con- sentencing pro- sidered the court in the entry is: A probation required cess. officer is
Judgment affirmed.
“investígate
statute to
any criminal
case
[by
matter referred to him
court]
investigation
*5
the result of the
McKUSICK, C.J.,
ROBERTS,
VIOL-
investigation.”
5404(1)
34-A M.R.S.A. §
WATHEN, JJ.,
ETTE and
concurring.
(Supp.1984-1985).
require-
The minimum
GLASSMAN, Justice,
ments of the
dissenting.
pre-sentence
content of a
re-
port
32(c)(2).
are set forth in M.R.Crim.P.
I
respectfully
must
my opin-
dissent.
only specific piece
The
of
re-
ion
sentencing procedure
by
conducted
quired by
“any prior
the rule is
criminal
I,
6,
the court violates article
sections
6-A
decisions,
previous
record.” Our
by
cited
and 7 of the Maine Constitution.1 The affi-
do not address the issue here
davits
by
relied on
court
presented.
accused the
of
Class C offenses.
A Class C crime is “infamous”
within
disagree
with the court’s conclusion that
meaning
require-
of the state constitutional
requirements
Maine’s constitutional
are
presented by
ment that infamous crimes be
being given
satisfied
Robert Dumont
(1975).2
indictment.
9§
deny
to read the affidavits and
I,
Article
section 7 of the Maine Constitu-
their contents.
provides:
tion
“No
shall be held to
precise
The
novel issue before the court
crime,
answer for
...
infamous
unless
a[n]
sentencing process
is:
can the trial
presentment
grand
on a
or indictment of a
alleged
court consider infamous crimes
jury....
Legislature
provide by
shall
have been
impartial
committed
the defendant for
law a suitable and
mode of select-
Farnham,
suggestion
(Me.
2. There is no
that the information
State v.
479 A.2d
presented
in the affidavits was used
the sen-
tencing justice
punish
the defendant for an
O'Donnell,
unproven crime. See State v.
9(1) (1983) provides:
2. 17-A M.R.S.A. §
803;
Grayson,
A.2d at
see also United States v.
Notwithstanding any
provision of
other
(rights (1859), determining detailed in section 6 not conferred individual that an complaint in given directly on his counsel to ac- could not be convicted under but trial, public liability punishment speedy, 3. conviction for To have and, crime, except punishment actually law or im- in trials martial rather than the vicinity. peachment, by jury of He shall inflicted is the criterion that renders an offense give White, compelled to furnish or evidence infamous. LeClair v. 117 Me. 104 A. life, himself, Vashon, nor be of his 123 A. privileges, by judg- but Justices, (1924). Opinion See also peers land. or the law ment (Me.1975). A.2d 802 January appointed a 6.In the Governor 9(1) 4. provision of 17-A M.R.S.A. allow Legislature 101st Commission individual to waive indictment *6 changes the amendments to Maine such and gain jurisdiction by pro court to necessary or appeared be Constitution as to optional voluntary procedure vides an and to Commission, alia, pro- inter desirable. The posed the and individual. See M.R.Crim.P. 7 Tuttle to Declaration of as addition the State, (1962), A.2d 608 cert. Rights, process "a due clause similar to denied, U.S. S.Ct. 9 L.Ed.2d appears 14th to the which as the Amendment of for discussion for both the State would forbid States Constitution that United and is the individual when indictment waived against person because of discrimination by and criminal action instituted information. race, Legis.Rec. religion, ancestry.” See 2 sex or Gosselin, parte See also Ex A.2d (1963). Initially, proposed amendment the dismissed, (1946), appeal read: indictment, (whether 90 L.Ed. as life, liberty deprived or person of No shall be complaint, requisite distinguished to from law, process be of nor due without prosecution, depends on commencement of rights enjoyment or be the of his civil denied punishable period of one whether offense is against in exercise thereof discriminated the year). race, ancestry. religion, or of sex because appeared 1448 in the proposal L.D. as I, section 6 of the Maine Constitution 5. Article majority the legislative of session. The 101st provides: and on Amendments Committee Constitutional prosecutions, reported In all criminal the accused the Legislative Reapportionmate right by minority be himself and of the ought pass. shall have heard not bill election; counsel, either, ought reported or bill his his that the same Committee (deleting by race, the lan- pass, nature cause of the To demand the and as S-275 amended thereof; accusation, copy religion, or ances- guage sex and have a "because of try.”). With this de- Legis.Rec. the witnesses See 2 2558-59. To confronted letion, him; added to proposed amendment was the Rights Constitu- obtaining of Maine process of the compulsory the Declaration To have favor; tion. his statute, prescribed power the form in an the impair has no right constitutional court stated: by jury imposing of penalties trial conviction).7 appeal from power Legis-
We do not doubt the the prescribe, change modify lature or only Not have Legis- we allowed the process proceedings forms and in all infringe by lature to upon statute these actions_ prose- civil But in criminal individual, rights of an cutions, right the exercise of this is limit- equally protective pur- have been when the ed paramount and controlled law pose legislation of the legalize was “to and centuries, the Constitution. It has for doings’ make valid 'the of the court since the in Magna declaration Char- criminal it jurisdiction.” cases when had no ta, law, been the boast of the common (1872), Doherty, Me. 504 protects jealous with care the Legislature court held the could not make rights of only the accused. It not se- legal and valid indictments returned speedy cures trial grand jurors impaneled and sworn jury, requires person but it that no shall Superior Court when that court had no answer, be held to until the accusation jurisdiction. criminal The court stated: against him formally, fully pre- applied When in criminal forth, cisely may set he know of cases, expression “due accused, what he is prepared and be law,” land,” “the law means charge against meet the exact him. This deprived life, that no shall be respondent of the has ever been liberty, property privileges, without regarded as sacred and essential or presentment by good indictment protection of the individual citizens. selected, men, organized qual- lawful forms, changes all the and in the ified, pre-exist- in accordance with some principles practices law, of the law, ing justice, and trial a court of right has remained untouched and according regular and established changed. people will- have not been judicial proceedings. course of express to leave it without sanc- Id. at 509. tion of the Constitution. In the Declara- through of re- history This Rights, tion of it is set down as one of peated assurance to the individual accused, all “in sanctity protections, of his constitutional prosecutions, to have a to demand Rights recognizes that the Declaration of accusation, nature and cause designed arbitrary power from exclude thereof; copy have a and that government. every branch We cannot life, shall not be *7 legislative assert no branch or privileges, judg- but power impair right given by the Con- peers, ment of his or the laws of the judi- and condone exclusion of the stitution land” This land” is not .... “law the prohibition. cial branch from that simply existing law statute State, but, decided, as has often been it is By requiring the to “answer right according process of trial to the charges upon to” crimes based infamous proceedings and of the common law. affidavits, the court violates the mandate require the de- Gurney, 433. See of section 7. To further Id. also State (1853) forego “speedy public 37 Me. and Saco v. Went worth, (Legislature “judgment and a his trial” Saco, him, it, proved explained “by if to the 7. we also contest acquittal." jury, and meant charge of the common law" was of a to demand an satisfaction right "that the accused has a know 172. Id. at against in the whole form and substance peers,” I charges as it relates to those before would the sentence vacate remand Superior the matter Court for depriving him of his resen- violates the tencing of the defendant. mandates sections and 6-A. In the guise “obtaining complete and accu- sentenced,” picture
rate justify impair- this court cannot violent
ment of an individual's constitutional rights.8 idle, very to be to me seems unfettered paraphras- language 8. borrow it, a fiction of the construct say the least of presented: Now issue to meet the truth of prevail legal resolving, law allow solemnly writ- courts to be justice. the ends of defeat stating gravely as to be ers the first eminence Case, and State Gur- at 452 Low's given that a settled law matter of ney, 163. 37 Me. at belongs citizen untrammeled Constitution