*1 STATE of Maine SMALL, III.
Clifford G.
Supreme Judicial of Maine. Court
April 21, 1966. Wahl, Stearns, Jr., F. Earl Franklin J. Portland, plaintiff.
County Atty., for Desmond, Tevanian, Mahoney, Casper Mahoney, by R. Des- & Robinson James Portland, Armstrong, mond and David G. defendant. WILLIAMSON, J., and Before C. SULLIVAN, TAPLEY, MAR- WEBBER, RUDMAN, DEN JJ. *2 TAPLEY, pushed open by shut the door it was Justice. defend- man whom he later identified as the defendant, exceptions. On The Clifford pushing Thomp- a result ant and as Small, III, G. was tried and convicted of He son fell to the bottom of the stairs. sus- September robbery the crime of pro- injuries, tained from which he bled
Term,
Court,
Superior
A.D.
fusely.
got up
apartment
finally
He
to his
within and for the
of Cumberland.
County
the second floor and it was there he
on
exceptions.
The case is before us on five
pant’s pocket
discovered that his
hand
and,
Exception
has been waived
there-
#3
money
had been turned inside out and his
fore,
by
for re-
considered
us. Counsel
Thompson
was not there. On
8th
June
motions,
spondent
(1)
filed
motion for
two
police
station
he found
called to
where
guilty;
(2)
a directed
of not
verdict
custody
he
defendant
where
mistrial;
motion for
both of which were
person
identified him as the
who assaulted
denied.
him on
4th.
June
defendant
exceptions
During
Thompson
the trial of the case
insufficient evidence
defendant,
claims there was
identified the
as he sat
doubt,
sustain,
beyond a
courtroom,
reasonable
person
di-
as the
who asked
assailant
of
as the
identification
defendant
rections and later assaulted him.
Thompson,
Henry
the victim
of
D.
presented
There was no evidence
robbery;
alleged admissions
that the
jury on behalf of the defendant to contra-
be
improperly admitted
defendant were
Thompson. Thomp-
the testimony
dict
interroga
they
after the
were made
cause
testimony
son’s
uncontradicted
stands
stage of the
accusatory
had entered the
tion
unimpeached
obviously
ac-
and the
having
investigation
defendant
without the
cepted
being
Apparently
it as
true.
counsel and
been advised of his
searching
Thompson
cross-examination
bring
exceptions also
remain silent. The
on
of identification did not
pre
question of the
this court the
before
impress
jury.
siding
allowing numerous
Justice
refused to an
propounded to witness who
identification,
Positive
if believed
self-incrimination,
grounds
swer on
jury,
is
con
sufficient to warrant
questions under the circum
claiming these
536,
Pluckett,
State, 234 Md.
viction.
v.
Jr.
nature,
were,
prejudicial to
in their
stances
74;
State,
A.2d
Coates
232 Md.
con
respondent.
further
Defendant
During the examination of Officer Joyce following testimony was de- Q. say What did he ? veloped : A. He said: T can’t remember too “Q. Did Mr. Small make statements drinking.’ much. was
that time? Q. anything ap- You notice about the A. No. pearance of Mr. Small at that time regarding his hands? Q. presence you, Thomp- Mr. son, Captain Koshian, Captain A. There were some abrasions on his
Koshian, anyone else, or ask Mr. knuckles. I can’t remember wheth- Small whether or not he was re- er the or left I did ask hand. sponsible for this assault and him about the abrasions. A. We did. battery? Q. v What did he [*] [*] say? [*] [*] [*] Q. thought question, got fight Who asked the A. He that in a sailors,
recall ? Norwegian with some or something. A. I asked him. Q. At that time did Mr. Small have on patch Q. eye he has on now? What was his answer to that? [*] [*] [*] [*] [*] [*] A. No, he did not. A. He could not remember what he did Q. your presence, did Mr. Small night because he had been deny ever that he committed this drinking. Thompson? act Mr. Q. That was the entire answer? said, remember, A. All he he couldn’t drinking, he was he couldn’t remem- A. Yes.” ber where he was. He didn’t ac- tually deny it, nor did he Captain Kochian of the Portland Police guilty he was far it. As as I testified, part: remember, can all he said was he drinking and he couldn’t re- “Q. Hear any conversation between Mr. member.” Thompson and Mr. Small at that time? Counsel for the defendant con A. sequence. That wasn’t the Thompson asked tends that when identified the if,
Mr.
person
Small what his answer was defendant as the
assaulted
him
Thompson’s
Mr.
allegations.
money
his
when
was stolen the case entered
accusatory stage
point
said: T can’t
remember.
and that at that
was drunk.’
the defendant was entitled
be advised of
cer-
rights;
interrogation
constitutional
that he should
hours
made
Escobedo
implicated
have been
him in a
informed
to counsel
tain admissions which
principles
plot
and because this
commit
an-
done
murder.
criminating
court
in Escobedo are
admissions
confessions
nounced
grounded
stated facts.
would not be admissible
him.
above
“ * * *
incriminating
Significantly
admissions in
of crime
detection and solution
criminal
are to
cases
be considered
is,
best,
a difficult and arduous task
category
same
as confessions and treated as
persistence
determination and
requiring
determining
admissibility.
such
their
part
responsible
on the
officers
all
State, Me.,
Michaud v.
tory accusatory questioning, as follows: by whether is sometimes to be determined de- of a whether identification “As to questioned was treated or not the one ‘line-up’ sufficient is fendant a considering all with fundamental fairness upon a defendant investigation focus questioning. circumstances of his depends upon and circum- all of the facts ment merated in the first ten Amendments ment of Preamble of the Constitution to government tive or the self to insure domestic meaning between stroyed. Bill dy rights individuals to from criminal molestation stance must strike the “It is trial ^ protect Constitution. dedicated of its Rights laws [*] permitting that the That is or enforce other constitutional power that is citizens judges and [*] are enjoy rights enumerated in the in the It will be a particularly not of power historically given who, in the first in- citizens is rendered % necessary balance tranquility language men, government such day rights enu- ‡ government to be free true of permitting a ‘establish scope ineffec- govern- govern- trage- is de- % the it- the sheriff’s office and the well ney’s office is to make sure that ular time is their are officers. One where a ant should have the defendant explaining case, mitted in the instant case occurred citement of the difficulty such circumstances on account of chance of attention to night stances as officers time, detect unjustly charged surrounding duty complaining which could his whereabouts a mistake in the fact that the crime and that there may identity ‘line-up,’ complaining protect guilty.” well feel that a defend- chief duties witness identifies be checked the innocent as with case. We under identity night. Even in the instant county witness, privilege of crime. always of both the ex- partic- *5 by people in the attor- com- call the It a pro- Justice, Tranquility, insure domestic only a The entire action took few mo- defence, promote for the common vide threats, promises, ments. There were no Welfare, general and secure the upon coercion or the de- violence inflicted Blessings Liberty to ourselves our fendant to cause or influence the defendant ” * * Posterity, Meaning and *.’ The say, sorry.” “I am Scope by Illinois Hon. Escobedo v. opin- majority A careful reading of the Pelt, District Robert Van United States ion in Escobedo will demonstrate that the Nebraska, F.R.D. Judge, District of predicated tests announced were 441, 466. obtaining in Esco- factual circumstances in the instant case bedo. It obvious that police We are not satisfied that when police interroga- the circumstances presented respondent for confrontation way comparable in no to those tion are complain- possible by the identification It would be found to exist Escobedo. ac- ant, investigation had shifted factually difficult to conceive of a case spontaneous stage. cusatory Thus more remote from Escobedo than the case most sorry’, T a statement am at bar. significantly in our view ambiguous and not its vol- there can be no when Under the circumstances incriminating, came at a time pre- statement, by any impaired other determination than that the was not untariness warnings ques- sorry” “I am liminary give the and the answers to failure to voluntary product tions were and not the respect to silence and with advice any by In State v. unfair treatment in Escobedo. the officers. discussed counsel 18, 401 P.2d discloses no direct or con- Ariz. record admission (1965), 98 Miranda grounds) court fession he committed other defendant that (decided complete the crime. The voluntariness of factual Douglas circumstances of and the statements, defendant’s as well as the total- instant analogous. case are not at all circumstances, ity of the demonstrate no Douglas prosecutor, guise under the cross-examination, violation of defendant’s constitutional asking questions rights which would have the effect of de- Lloyd alleged from an confession stroying Lloyd the fact that his statements were had made. The form of product tioning of a mind free from com- continued until the entire document pelling part prosecutor influence on the of the inter- had been read. The then called rogators resulting in a violation of due three officers who identified the document process. inquiries The confrontation and as embodying signed by Lloyd. a confession police alleged This which occurred station were confession was identified as character, investigatory “threshold” in exhibit but never offered evidence. It accusatory, rather than the events and is obvious prejudi- that these tactics were Douglas. cial to conversations connection therewith were the instant case no such properly circumstances received in evidence. Common- obtain. Lepore, wealth v. 349 Mass. 207 N.E.2d If, reason, the defendant was (1965). prejudiced by type examination, it cured the presiding The sum total of the circumstances when he Justice develop his instructions -to
instant case does not into consti- referred to the refusal of deprivation rights. the witness to answer on the tutional of defendant’s by saying: of self-incrimination presented a witness The State as not, “You will instruct with Mr. Palmer one Richard Alfred Palmer. emphasis much capable, as I am under- he was called as a witness was time speculate upon take to might what have Prison. serving sentence in Maine State been his answers had he chose not to preliminary questions he Other than a few constitutionally guaranteed priv- voke the questions propounded refused to answer *6 ilege against self-incrimination. The reason, attorney for the as stated State’s is, fact of the matter such he did invoke on the “I refuse to answer his own words: right; doing constitutional he was so During grounds might it incriminate me.” rights. clearly within his That is all by the the course of a brief examination testimony. there is to his You will not advantage of his took witness State any undertake to draw from inferences thirteen under the Fifth Amendment right anything say, he didn’t because I instruct argues Counsel for the defendant times. you, your conclusions must be based en- attorney position permit State’s his that to evidence, tirely upon legally admitted questions, resulting in propound thirteen gave beyond stating he no evidence grounds of refusal answer on the was, name, where he where once self-incrimination, prejudicial to highly was particular person resided and a whom he respondent. this rea For rights of the gave That is all he He no knew. said. contends that the refusal the defendant son other evidence. The which grant a mistrial presiding Justice were asked him were asked in forma error. was proper ruled because of law rules of with which I not need enter into a discussion great lays defendant for the Counsel Alabama, on this case. You will not undertake to 380 Douglas v. stress on State questions. draw inferences from the 1074, L.Ed.2d 934 85 S.Ct. U.S. The fact of the matter is that the examination position that the sustain State, answered, your tions not when so disabuse for the Palmer counsel inferences which could questions on minds of refused to answer Palmer self-incrimination, speculate might preju- have resulted had wit- provisions The ness chosen not to invoke the rights of the defendant. dicial to testify. The Court refusing ilege by guaranteeing against Constitution acting Palmer was amply compulsory made it clear self-incrimination.” Fifth rights. constitutional within his Maloney, Cir., See United States 2d v. Constitution; I, Amendment, Sec. Art. S.U. F.2d 535. 6, Maine Constitution. ordering “The aof mistrial is within privilege right The to invoke the Second: the sound discretion of presiding jus- witness, right and not was the exceptions tice only will lie to a pass the defendant. clear abuse of that discretion.” State v. properly considered whether Palmer was Woods, 102, 103, 105, 154 Me. 144 A.2d techniques of subject hostile 259. Hostility of a witness cross examination. it, by the valid determined, See also I see Norton, State not 151 Me. right. My dis- invoking A.2d constitutional 635 and Hamilton, State v. 149 Me. sent, however, point. not rest 100 A.2d does Third: The the witness to State offered It is to be noted objection that this upon bearing establish material facts does not raise a question. constitutional guilt. defendant’s there would Otherwise We find prejudicial no error in the re- have been no him placing grant fusal to a mistrial. short, answer- stand. In if Palmer had questions affirmatively, ed the The record shows sufficient admis thereby State would have added evidence sible evidence to sustain the verdict of value, i. of Palmer’s e. substance guilty. police, statement to the to substantiate the charge against the defendant. entry The will be: prosecution Fourth: know Exceptions overruled. when the witness took the stand that privilege. would invoke the SULLIVAN,. J., argument sat but re- tired opinion before the adopted. record, shortly As I read the after the prosecu- start of the direct examination the WILLIAMSON, Chief (dis- Justice known, knew, plainly tion should have senting). that the witness would refuse to answer questions be would within his constitu- I would exception sustain the to the re- exercising privilege. tional grant fusal to a mistrial. *7 place point at the refusal to answer The State offered the witness Palmer police, he made a statement to the whether repeatedly refused to answer on the surely no later than at the refusal to ground thereby that he would incriminate answer whether the statement was con- pertinent parts himself. The of the record nection with the defendant Small. opinion are included (1) my herein. prosecution sought get Thereafter the might reasonably ferences which be ex- jury before the the substance of the state- pected by jury to be drawn the from the ex- by ment not admissible evidence but amination the prejudicial of witness were through questioning. the and were by not erased the instructions to jury. the testify It is said that the witness did not except all a few innocuous at answer to For convenience I set forth bases certain questions (1). Strictly it is correct to reasoning: my here, answer, that a with no First: The witness equals- testimony. Palmer had the of our no The root under the priv- problem, deeper. circumstances to suggest, the I invoke 270 difficult, pur- ed men find it
When the course the witness would
and women would
view,
apparent,
State, my
impossible,
from their
sue became
not
to exclude
questions direct-
pressing
repeated leading
committed error in
the examina- minds the
bearing
guilt
I
accused with the
ly
tion.
have no concern for the witness.
on
silent,
testify on
repeated
He chose to remain
in the exercise
refusal of the witness
privilege,
infer-
self incrimination.
and must bear whatever
may
ences
we
care to draw from
point
I think
critical
was reached and
conduct.
passed in the case
bar.
am, however,
escape
I
the con-
unable to
my
the case comes within the
view
repeated
prose-
clusion that the
blows of the
Alabama,
principle Douglas
v. State of
attorney’s
questions forced
cuting
1074,
415,
course, properly be the basis case, join On the other issues in the defendant; may yet this against the opinion of the Court. upon this record. have been the result in the examina- error prejudicial theWas (1) charge ? The instructions cured tion THE RECORD all Court did unexceptionable. The *8 stage of the case at that could be done Court, request the witness At the Palmer from questioning of remove the his constitutional Palmer was advised of jurors. minds of.the the Bar. He was rights a member of cases the in most firmly believe that called, as follows: then sworn and testified arising at trial may correct errors Court stated, question he jurors To each unanswered jury, instructions to There “I refuse to answer on the that it from the Court. the law” “take might incriminate me”. however, fair mind- at which point, comes a Q you “DIRECT Did EXAMINATION leave Clifford off Congress corner State and BY (County MR. STEARNS: Attor- Streets ? ney) Q you Did him later the Forest see at Q Speak right up, Mr. Palmer. State City Diner? your full name. Q you City the Forest Diner Were A Richard Alfred Palmer. 1:30, morning on about 2:00 Q ? 1964? you How old are June Q A Did Clifford Small come into City Forest Diner you after left him Q you Where do reside ? uptown? off A Thomaston State Prison. (Counsel MR. TEVANIAN: for De- fendant) please, If Honor Q Your I sub- long you How have been in Thom- mit has Fifth man taken the aston State Prison? my seems Amendment. It to me broth- A 22 days. using er is get- ting may Jury probably to the what he Q you formerly Where did reside hoped have testimony this man’s would Thomaston State Prison? I object be. the form A I was at 107 Street and at Sheridan tions. 108 High Street. THE COURT: think under the cir- Q you Street, High When at 108 lived degree leading being cumstances the you
did live alone? permissible indulged in is under the rules. Overruled. Q Now, 4th, 1964, you did June have occasion to he the Portland Q you, City I ask down the Forest Police Station? shortly you Diner after left Mr. Small Q day, you On that did make state- uptown, give you off some ment to the Police ? Portland money? Q you Was this that I ask MR. object, TEVANIAN: would about in connection with a case please, Your Honor to the form of the Small, Clifford III? J. grounds my on the broth- er is leading— Q night early On the morning 4th, hours of was Clifford June J. THE COURT: Overruled. Small, III, your car? Q you Did give money some down Q you Small, Do Clifford G. know there ?
III? Q you policeman Did see down Yes, A sir. City Forest Diner? Q him in Courtroom See now? Q Did you go tell .Mr. Small to men’s night room down there that be- Yes, A sir. policemen cause there were outside ? Q Jury. Point him out ‡ ‡ ‡ ‡ ‡ ‡ there, Q sitting A Gentleman over While were down at the Forest *9 City Diner (Indicating) down. with Mr. about 4th, And the is so weak it couldn’t evidence morning 2:15 the June possible sustain a guy a ? conviction. you didn’t he he smashed object, Hon- MR. I Your TEVANIAN: deny your THE I motion COURT: or, like I a I would have motion sure, I am for the a directed verdict. to make at side bar. record, the you suggest do not n The witness County Attorney’s statements THE COURT: Overruled. aware, You are without foundation. may answer. certain, you I am because were shown Might my objections MR. TEVANIAN: statement, County Attorney the questioning be noted to all this line of reading questions a from writ- in this matter? given by signed ten and Department at the witness at the Police Certainly. don’t think THE I COURT: arrest, of his so it isn’t a situation time you can under the rules. do that prosecutor questions of a asks wild make them. think will have to deny your without basis. I motion question is objection Your noted. this for a mistrial.” Q Now, you got after back down FROM CHARGE TO Diner, you notice JURY: City the Forest anything wrong with Mr. Small’s case, also, “In this a witness was called hand? —I his name Palmer. If believe object. MR. TEVANIAN: recollection, my I am correct in he tes- tified that at the moment he was an THE Overruled. COURT: mate of Maine State Prison. He tes- questions. MR. I have no TEVANIAN: name, tified as to his answer to I would the Court to instruct move a direct testified that he knew Jury questions that were that all of the respondent. this several He was asked brother, by my read into the record questions. reply other to those sev- County Attorney, I ask the Court would responded eral other dis- Jury they are to be to instruct the testify substance that he refused to regarded construed in and not be grounds that to do so would tend in this form or manner evidence par- to incriminate him. In common case. lance, provisions of he invoked the Fifth Amendment of the Constitution THE this is COURT: I don’t think applica- United States requested appropriate time for instruc- provisions ble Constitution time, appropriate tions. At a more guaranteeing Maine one self- will be circumstances of did, doing incrimination. what he Jury. described exercising constitutionally he was but guaranteed right beyond giving his ****** name, beyond stating that he once liv- (In hearing Chambers without Portland, ed in or sometime lived in place:) Jury following took Portland —I think that is what he said [******] —and beyond stating that he was pres- ently like to make an inmate at the Maine State MR. TEVANIAN: would' Maine, Thomason, gave Prison in a mistrial that a motion for testimony.” are no other remainder County Attorney tions read [The point quoted they charge on this prejudicial that so harmful and opinion charge. possibly be cured can’t Court.].