*1
419
stock,
1285,
(6th
1976);
ing
prosecutrix.
546 F.2d
1291
Cir.
Yet several defense
57,
Cooper,
N.J.Super.
Virginia
State v.
A.2d witnesses testified that
indeed did
702,
(1979) (quoting Greenberg
making up charges involving
v. Stan-
admit
503,
ley,
485,
833,
30 N.J.
153 A.2d
prosecutrix.
counsel,
defense
(1959)).
Virginia,
his
carefully
cross-examination of
referring
any alleged
avoided
incident
say
We cannot
the error here
that
involving Darlene.
guilt,
harmless. The
while
evidence
suf-
conviction,
ficient to sustain a
is far from
argues
The
also
State
later call-
overwhelming.
solely
witness,
It
ing
consists
es-
Darlene as
defendant
sentially
testimony of
uncorroborated
any
holding
waived
error. Such
would
prosecutrix.5
presented
The defense
evi-
put strategically impossi-
defendant in a
dence which
prosecutrix
indicated
position;
jury
ble
was wrongfully
once the
had been
up
told
her mother to make
her
incident,
made aware of the other
the de-
story,
prosecutrix
evidence that
had
nothing
fendant
(hoping
could either do
for
story
admitted that her
was not true.
a reversal
appeal),
try
could
by explaining
avoid conviction
the circum-
summary,
In
exposed
prior charges, thereby
stances of the
taking
extremely prejudicial testimony which was
appellate
the risk that the
court would treat
any
not
theory;
prose-
admissible under
having
objectionable
him as
“adopted”
cutor, though
the danger,
aware of
failed to
testimony
purposes.
strategic
We
it;
take steps
prevent
the defendant
put
refuse
to that
choice.
promptly
mistrial;
moved for
immediately
was not
disregard
instructed to
entry
is:
testimony;
evidence supporting
Judgment vacated.
the conviction
overwhelming.
was far from
Remanded to the
Court for fur-
comparable situations,
it has been held
proceedings
ther
opinion
consistent
that a mistrial
have
only
would
been the
herein.
appropriate remedy. See United States v.
Carney,
(3d
1972);
removed the prejudice unfair in this case.
We simply conclude that on the record be- us,
fore did not receive a fair
trial. STATE of Maine further two “waiver” ar
guments First, made the State. argues that the defendant was aware John Francis HOWES. Virginia Goodrich’s retraction involved Supreme Judicial Court Maine. charges involving (the Darlene oth girl), er by questioning Virginia and thus Argued 1981. Jan. about her retraction he ran the risk of the July Decided jury hearing in rebuttal about those charges. argument assumes that de
fense Virginia counsel knew that in fact
had not any retracted statements concern- argues problem pros- 5. The State ear arose what could or of have ecutrix, e., (f. alleged sometime the date of caused it to the ear could a blow have infection, rape, it). only testimony had an ear corroborates her caused that blow testimony prosecutrix. that the defendant struck her on the struck came from the testimony ear. There is of either when the *2 appealed
Maine has entered favor of the defendant justice presiding John Francis Howes. The ordered such entered notwith- standing verdict which found *3 guilty defendant of the crime of arson com- of mitted in violation 17-A 802. M.R.S.A. defendant, against The indictment re- Superior turned March 1979 to the (Penobscot County), charged Court that the on April crime of arson had been committed a connection with fire that de- house, stroyed an uninhabited barn and shed situated in Patten and owned Gramling. Thomas Defendant was accused having arson, accomplice been an to the that, by having driven automobile at the fire, vicinity time had picked up people allegedly who several set the fire.2 trial, At State concluded its presentation evidence, defendant moved judgment acquittal ground for that the State’s evidence was insufficient beyond a establish reasonable doubt either that the fire result arson or that legally defendant accountable as an denied, accomplice. This motion was proceeded present defendant evidence in his own behalf. At the close all the Cox, Atty., Christopher David M. Dist. R. renewed his defendant motion for Almy, Gary (orally), F. Thorne Dist. Asst. judgment presiding jus- of acquittal. Attys., Bangor, plaintiff. for response tice made to the motion. After Anderson, Zendzian & Paul Zendzian finding returned its verdict de- (orally), Bangor, for defendant. guilty charged, fendant counsel for the reminded the McKUSICK, J., Before C. and WER- pre-verdict for NICK, GODFREY, that the motion NICHOLS, ROBERTS CARTER, acquittal ruling for be remained a to made. JJ. however, jus- appears, presiding It WERNICK, Justice. making ruling. tice continued avoid a Relying day, next filed a motion on the authorization set forth in 2115-A(2),1 M.R.S.A. State of stating that provision resulting prose- of the statute reads: trial or termination of the accused, ap- cution peal favor when may Appeals “2. after trial. An permitted by of the order would be taken from State jeopardy provisions double tion of the United States and of the Constitu- or the District Court to the law court after Constitution finding by jury trial and after a of Maine.” granting court from the motion trial, judgment, new from arrest of from dis- allegedly people set 2. None who these other requiring missal from orders a new other prosecuted. have been fire ever judg- “makes and renews his motion for cause defendant had moved at the close of acquittal ment of made at the close of all evidence, all the when no verdict had the evidence” returned, been for an order that asks, alternative, and also context, for a new be entered. In this trial. defendant, says notwithstanding that Rule motion, holding hearing presiding jus-
After M.R.Crim.P. authorizes the on this presiding justice granted defendant a tice to new trial contrary because “the verdict was “reserve the decision on . . . mo- [such] weight to the of the evidence.” Soon there- tion, submit the case to the after, asking filed a motion decide the . motion . . after it returns a justice to reconsider his order of a new trial ”, ... since, State, according ground ordered after the justice referred to proper is not a *4 jury guilty return of a verdict of must be ground granting under the law of Maine for held to “relate back” to the time before the appealed a new trial. Thé State also to the jury case went to grant Law Court from the the when defendant had of a new trial. moved, evidence, at the close of all the for a Subsequently, request par- at the of both judgment Thus, here, acquittal. of defend- ties, the Law Court remanded the case to maintains, jeopardy ant issue double Court for “such action as the approached to be presiding justice on the basis that necessary.” deems On re- mand, presiding justice judgment vacated his or- acquittal ordered entered entry der of a new trial and directed jury before the return of the verdict of judgment ground on the view, guilty. argues, On this “the contrary weight verdict was to the law of Maine makes United v. Wil- States 3 the evidence.” son, 332, 1013, 420 U.S. 95 S.Ct. 43 L.Ed.2d (1975) inapplicable, 1. 232 and causes Burks v. States, 2141, discuss, first, United 437 U.S. 98 S.Ct. We ap- whether the State’s peal is authorized under 15 M.R.S.A. L.Ed.2d 1 precedentially become A(2). precise issue is whether controlling require and to the conclusion 2115— judgment the State’s of ac- in this case cannot quittal, upon pre- entered the order of the 2115-A(2) lie under 15 because M.R.S.A. § after, siding justice notwithstanding, expose jeopar- it would defendant to double guilt, return of a verdict of dy. ground inadequate that the evidence was in defendant’s “relation back” conviction, law to sustain a would be con- conception option of the effect of the Rule protection against sistent with the double gives to reserve jeopardy by afforded the Fifth Amendment decision on a motion for of ac- to the Constitution of the United States4 quittal after the decide motion I, Article 8 of the Constitution of guilty. has returned a verdict of Maine.5 explaining Our discussion this conclusion argues jeopar- Defendant that the double violated, here, dy protection begins points. would be be- with two foundational presiding justice’s authority ordering Jeopardy 3.The 4. The Double Clause of the Fifth entry arises from Amendment to the federal Constitution states: any subject person Rule 29 M.R.Crim.P. Under that rule “nor shall for the same acquittal may put jeopardy “if be ordered the evi- offence to be twice of life or limb; dence is insufficient to sustain a conviction . . . .” Hence, we, parties agree, . . . .” as do presiding justice’s phraseology I, 8 of Article Section the Constitution intended legally him to provides person, mean that evidence was for the same Maine offense, that “[n]o support insufficient conviction. put jeopardy shall be twice of life or limb.”
First,
interpret
we
appealability
the double
bar to
is automatically avert-
provision
jeopardy
of the
(emphasis added)
Constitution
ed ...”
where
neither
protection essentially
Maine to afford
like
second trial nor
guaranteed by
jeopardy
the double
least,
“at
‘further proceedings of some
Amendment,
binding
clause
the Fifth
as
sort,
devoted
resolution of factual
through
process
on the states
the “due
going to the
issues
elements of the of-
Amendment,
of the
law” clause
Fourteenth
charged . . .’”
fense
to the Constitution of the
States.
United
will be
a “successful
“necessitate[d]”
Hence, we heed the decisions of the Su
governmental
reversing
. . .
preme
of the
United States
double
acquittal.” Thus,
[judgment]
as held
jeopardy
respects:
in two
we
them
follow
Wilson, supra,
United
exist-
precedentially controlling
delineating
ence of a
automatical-
binding
effect on the
the fed
states of
ly
appealability
bar
averts a
protection
eral Constitution’s
against dou
government arising from the constitutional
jeopardy,
ble
and we
them
upon
look
protection
because,
against
jeopardy
double
helpful guides regarding
scope
most
adverting
characterization in Martin
protection against
af
Co., supra,
Linen Supply
at
at
97 S.Ct.
by the
forded
Constitution of Maine.
1354 of the critical facet of the Wilson
Second,
provisions
we construe the
holding:
conferring ap
of M.R.S.A. §
verdict,
“restoration
peal rights on the
cases
criminal
*5
trial,
a
necessarily
new
would
if
result
manifesting the intendment of the Maine
prevailed.” Id.,
570,
the Government
at
legislature to be at least
as
as broad
was
97 S.Ct. at
Congress
that of
of the United States
distinguishable
In our view Wilson is not
when it enacted 18
3731. We so
§
U.S.C.
because,
there,
government’s appeal
light
conclude
“liberal
post-verdict
was
an
from a
dismissal of
construction” mandate in
but
whereas, here,
appeal
indictment
State’s
also because the
language
textual
is
post-verdict entry
judgment
2115-A(2) is even
comprehensive
more
acquittal
insufficient
to
scope
language
than the
of the
stat
federal
warrant conviction. We so
not
conclude
ute.
therefore
legislative pur
take the
withstanding
jeopardy
double
conse
pose
be to
right
to
make the State’s
quences assigned
judgment
to such a
appeal
plenary
constitutionally per
as
as is
States,
acquittal by Burks v. United
437
objective,
missible.
in United
stated
1,
2141,
98
358, 365,
1006, 1011,
95 S.Ct.
“When a case has been tried to a dural primarily, authorization calculated Jeopardy pro- the Double Clause does not explained Supply Co., in Martin Linen su- appeal by pro- hibit an the Government pra, 574, at U.S. at S.Ct. viding that a retrial would not be re- quired judge in the event the Government “to is afford trial the maximum opportunity appeal. pend- successful in its United v. to consider with care a States Wilson, ante, 344-345, ing acquittal motion.” at 352-353 [95 1022-1023, S.Ct. at When 1026-1027]. regard In this we see no sound reason for applied principle this is to the situation pretending to return to a time past in the guilt where the returns a verdict of ignoring reality of the actual exist- but the trial court thereafter enters a ence of a that can be acquittal, per- restored should the State’s be suc- mitted. In that situation a conclusion simply impose cessful. We refuse to appellate court that the upon legislatively limitation contem- improper require does not plated plenary scope of the State’s criminal defendant to submit to a second appeal that would arise from so artificial a trial; the error can be on re- corrected technique permitting entry mand aof play appeal. come into to bar the State’s verdict.” short, agree fully pungent we com- ment Supreme Court of the United message conveyed also most co Jenkins, supra, States United gently, indirectly, even if in Martin Linen 420 U.S. at at S.Ct. 1011: Supply Co., supra. Justice Stevens there sure, “To prefer would wrote concurring opinion taking posi permitted Government not be tion that the fact alone *6 or that the of conviction acquitted in a criminal case was bars an entered, not be but this interest the appeal by government judg the from the defendant is not one that the Double acquittal. justice, ment of No other how Jeopardy designed pro- Clause was to ever, agreed Further, position. with that tect.” analysis majority opinion the of the treated as point determinative the that over We decide that in the circumstances above the insufficiency fact of for of this appeal, case the State has a evidence, jury agree the had failed to on 2115-A(2), under 15 from the M.R.S.A. § verdict; hence, a finding verdict Supe entered in the restored, existed to be rior Court. thereby automatically to avert the bar of jeopardy arising necessity from the government
of a new trial in the event the
We turn to the State’s contention
prevail
appeal.
should
See also United
presiding justice
wrong
that
the
Blasco,
(7th
F.2d 681
Cir.
concluding that
the evidence was insuffi
1978);
Clemones,
United States v.
577 F.2d
support
cient
to
defendant’s conviction.
(5th
1978);
Cir.
United States v. Dre
legal
insufficiency
The test of such
itzler,
(9th
1978).
reached his applying process principal source of the evidence on which generated elimination to evidence investigator’s conclusions were based investigation his of the fire site and his was an examination of fire site over conversations Gramling with Mr. concern year after the fire occurred.
ing
presence
fire-causing
or absence of
if
Even
we
evi
assume
agents in the barn. Mr. Stevens first visit
sufficient,
dence on
issue of
arson
ed the scene of
fire
fourteen months
the record contains no evidence to show
after it occurred. He described the area as
participated
way
in any
completely
overgrown,
burned out and
support
crime. There was evidence to
he admitted that he was
unable
deter
jury finding that defendant was with sever
mine
origin.
the location of the
By
fire’s
al friends in a car at the scene of the crime
process of
he indulged
elimination
the as
apparently
and that
driver
sumption the fire
started in
barn.
the ear when it left the scene of
fire.
assumption, however,
was contradicted
However,
showing a
defendant’s
Mitchell,
neighbor
Ernest
of Mr.
*7
presence
mere
at the scene of a crime is
Gramling
apparently
and
the first witness
inadequate
prove
accomplice
him
fire,
gave
to reach the
scene
who
of the crime.
Ger
commission
State v.
testimony
uncontroverted
that
the fire
vais, Me.,
(1978).
The State original issue as follows: version of section pertinent except part, (Supp. jeopardy 1. In 18 U.S.C.A. 3731 ... ... where the double 1981)permits by government prohib- appeal “from clause of the United States Constitution decision, judgment, prosecution.” or order of a district its further dismissing court an indictment or information appeals after were Supreme trial limited to cross States Court has ever con- found appeals. jeopardy protection any sistent with double permitting procedure conviction after original legislation The repealed trial court has entered a ac- of replaced by P.L.1979, ch. 243. The new quittal of evi- based an evaluation 2115-A(1) provided for expanded section an relating guilt dence to or innocence. right appeal prior of to trial while subsec- Against persuasive such indications provided (2) tion as follows: meaning (2) narrow of subsection is there Appeals after trial. An legislature the action of the in in may be taken the State from the (6) amending subsection as follows: or Court the District provi- 6. Liberal The construction. the law court after trial and find- liberally sions of this section shall be con- ing guilty by jury of or the court from purpose, pur- strued to effectuate its or granting trial, of motion for a new poses, insuring of tho is State able judgment, from arrest of from dismissal proceed to trial with all it tho evidence is or from other orders requiring a new trial te-introduee, legally entitled of view resulting or prose- in termination of the ability the limited of the State to have accused, cution in favor an when error reviewed after trial. appeal of the order permitted would be change originated, explanation without the double provisions of the debate, part of Committee Amend- Constitution United States and the ment “A” to regular L.D.1925 the second Constitution of Maine. Legislature. session 109th L.D.1925 (6) Subsection stated: proposed by an omnibus bill the Crimi- provi- 6. Liberal construction. Commission; Advisory major nal Law its of this liberally sions section shall be con- component complete was a revision purpose, pur- strued effectuate its dealing post-conviction statutes with review poses, insuring that the State is able to post-conviction (formerly corpus). habeas proceed to trial with all the it There are references in either the state- legally introduce, entitled to in view of ment of facts or the Commission an notes to ability the limited of the State to have expansion of the right appeal. State’s error reviewed after trial. original Given the fact that subsection accompanied statement of fact which (enacted P.L.1979, 243) ch. described the legislation this declared that the act “delin- legislative purpose narrowly even more pretrial rulings eates the and orders which explicit language than the of section 2115- may appealed by be the State and clarifies A, I would view the 1980 amendment as timing and nature cross-appeals by merely eliminating inconsistency rather criminal cases.” L.D. No. expansion than as an “to make the State’s Leg., (1979) (emphasis 109th 1st Sess. add- right plenary as is constitution- ed). ally permissible.” I would wait until persuaded I am original legisla- legislature unmistakably manifests such purpose quite tive modest. The broad parameters intent I before would define the language (2) granting in subsection by the Fifth Amendment mandated I, State a “from other orders United States Constitution or Article requiring resulting a new trial or in termi- of the Constitution of Maine. Section 8 prosecution nation of the existing legislation favor does I find that Since interpreted accused” must being appeal, limit- I would authorize ed, preceding immediately as were the cate- dismiss it. gories, dispositions involving adjudica- sufficiency
tion issues other than the interpre-
the evidence. I find that limited persuasive particularly light
tation
fact that this nor neither the United