*1 premised on breach of actions recovery general contract the rule allows damages reasonably which were with contracting par contemplation
in the agreement
ties when the was made and naturally breach
which would flow from a Simonds, 147
thereof. Susi v. Me. Dyer, v. 102 Me.
A.2d 178 Bennett A. 725 damage compris
The elements of $2,500.00
ing the award are not encom concept.
passed foregoing within the A statutorily
good faith effort re hold
quired hearing cannot be the foundation on type
which to base a claim for this of conse Wood,
quential damage. Bishop See
U.S.
(1976); see also Miller v. Board of Educa Dist.,
tion of supra. Sch. Number entry is:
Appeal except denied as to the award of
$2,500.00 consequential damages. Superior
Remanded to the Court for en-
try judgment with this accordance
opinion.
DUFRESNE, J., argu- A. R. sat oral
ment prior as Chief Justice but retired preparation He opinion. has
joined as Active Retired Justice.
STATE of Maine
Dale L. THIBEAULT.
Supreme Maine. Judicial Court
Aug. 1978. *2 Cox, Atty., Gary
David M. Dist. F. Woodcock, Jr., Thorne (orally), John A. Attys., Bangor, plaintiff. Asst. Dist. Ford, III, W. by Eugene Ford & Hall Bangor (orally), for defendant. McKUSICK, J., Before and POMER- C. OY, WERNICK, ARCHIBALD, DELA- HANTY, NICHOLS, GODFREY and JJ. McKUSICK, Chief Justice. Appellant re- Thibeault was indicted for ceiving in violation of 17—A burglarized her had been police that home (Supp.1977).1 M.R.S.A. A Penobscot § With of her furniture stolen. and some County jury guilty him found mind, re- Officer Ferland information in excess of with a value the Thibeault residence turned to $500, appeal deny D crime. We Class he arrived home when 27th. No one was resulting conviction. judgment from the *3 He observed furni- shortly after noon. May 26, morning On the of a concluded through ture window and Bangor department an police received anon- description missing it of matched ymous call phone informing them sto- Gray. The Thi- given by Mrs. furniture being len was into the resi- moved surveil- placed was under beault residence defendant, Thibeault, dence of the Dale m. Dale Thibeault was p. lance. At 10:30 Bangor. 26 Market Jo- Street Officer was when returned home. He arrested he seph Ferland drove to Thibeault’s residence where, police station Bangor taken to shortly 26May sometime after noon on and rights, Miranda being of his after advised knocked on Mr. Thibeault an- door. incriminating arguably but he made some swered the door. officer informed Thi- concerning his ambiguous statements beault that he information had received was stolen.2 the furniture knowledge that that some furniture that moved into was conflicting evidence at trial as to There was morning Thibeault’s house that was stolen. knowledge that gained when Mr. Thibeault voluntarily Thibeault consented to offi- counsel con- stolen. His furniture was furniture, inspection cer’s assisted of acquire he not this knowl- tended that obtaining him in from TV serial number visited his edge Ferland until after Officer set, questions concerning answered his and therefore the on the 26th and that home origin of furniture. to knowl- incriminating statements referred Mr. Thibeault told Officer Ferland that edge as of that time. gained only purchased he had “Billy, the furniture from testimony the defendant’s Given the I mean Charlie or Thi- Chuck O’Connors.” Thibeault, wife, could Catherine paid beault said he for the furni- $350 first have the furniture was found that ture he receipt. but that did not have a He a Bill to the Thibeaults Randall offered also on said O’Connors lived York early on morn- and a Charles O’Connell and that the was Street furniture delivered ing Mrs. testified of the 26th. Thibeault green in a van. left officer objected price to her husband to Thibeault’s residence and drove York told requested by She O’Connell. $350 Street, unsuccessfully where he lo- tried to have see furni- she would to O’Connell cate green an O’Connors or a van. first, to ture and then drove O’Connell’s she Appar- it. day Gray place inspect Mrs. following On the Charlene on York Street saw, told him that Lucerne, Maine, liking she reported Bangor ently what she you “Q. provides: Thibeault tell relative to What did Mr. 1. The statute particular other furniture that officers the had taken from theft, person guilty A if re- “1. he apartment? his ceives, disposes retains or I to know. And “A. asked me what wanted He stolen, knowing it been or another has he him I how came I told possession wanted know stolen, probably believing that been it has He stated that the furniture. deprive the owner there- with the intention to stolen; I knew he knew the furniture the furniture was of. me; stolen, referring to section, As used in this ‘receives’ “2. it; that I that he knew who stole and title, acquiring possession, means control going who it. But he was knew give stole security lending ame statement. section, purposes property is For ‘sto- question “Q. you him? Did Yes, continue len’ if it was obtained or unauthorized con- “A. sir. trol it of this was exercised over in violation question? “Q. your next What was chapter.” bring furni- “A. him did BillRandall I asked Clarke, Testimony Ban- 2. of Lieut. Frederick E. stated, going ‘I’mnot He ture to house. gor Department: Police you that. He’ll I tell answer that. cannot ” kill me.’ he bring apart- the furniture to Defense counsel moved to excuse her Mrs. prosecution ment and she and the go to see Sanders cause ob- bank motion, jected. The denied the about a loan. court not- She obtained a loan from the fact ing “The mere that she is Merrill an bank between 10 and 11 a. m. that employee Bangor Mental Health In- morning money took the with her to stitute, would in and of itself disqualify the restaurant where she worked. O’Con- her unless it could be connected with the paid nell was at 4 m. p. that afternoon Defendant.” when came the money. collect questioned The other two veniremen indi- appeal, On his defendant claims reversi- although they nothing cated that knew ble error was committed in each four condition, they the defendant’s mental were respects: (1) right that his constitutional him, personally acquainted trial before an impartial jury impaired jury. Both preferred on the were not to sit *4 by juror knowledge previous of his status as excused for cause. patient a hospital; (2) a mental that the questioned as justice trial All three veniremen were erroneously instructed the to whether defend- they had discussed as to the elements crime hospitalization ant’s with other members of property; (3) that there insuffi- was jury panel. One indicated she had cient evidence to support finding remark, Bartlett, a by made Mrs. overheard the recovered worth was expect sitting that she up did not to end on $500; (4) more than photograph, that a jury. ques- was then Mrs. Bartlett accurately which did not portray the recov- tioned, and she answered that this comment ered stolen was property, erroneously ad- way ability in no her to render an affected mitted into evidence. impartial verdict. A defense motion to ex- proceed We now to consider each of these cuse Mrs. Bartlett for cause was denied. contentions in order. justice ques- The trial further conducted tioning prospective jurors. Five all the I. Challenge to the Jury they indicated inferred that defend- had Before trial ques- the veniremen were patient ant had one a at been at time a group concerning acquain- tioned as their All, however, they said were in no BMHI. tance with defendant. Three members way knowledge. Defense by affected this of the panel they said had seen the defend- strike the counsel renewed his motion to ant at Bangor Mental Health Institute panel, again de- entire but the motion was (BMHI). The trial wisely recog- impaneled. nied. The The de- nized that questioning continued of these challenges, peremptory fendant used all his three the presence panel of the entire persons they but two who had admitted might to a general airing lead prejudicial believed the defendant was a former BMHI grant information. He refused a defense patient jury. on were seated panel motion to strike the entire and in- appeal that he argues On defendant stead conducted voir separately further dire jury composed was entitled a trial to have of each three individuals who had not know of his status-as who did identified defendant with BMHI. patient argues a former at BMHI. He Sanders, One potential juror, Mrs. who knowledge regard per prejudicial, se BMHI, worked at the said she never had jurors testified it less the fact that the defendant, talked with the did know them, that conse not influence him, and was not psychi- aware what his impar an quently right to his constitutional atric condition was. The entire extent of right to an tial was violated. The defendant, said, her knowledge of the she guaranteed all criminal impartial jury is was that she had seen him at the by Institute. Amendment of the defendants the Sixth I, She she testified be influenced in Article United States Constitution in way reaching impartial an verdict. of Maine. section 6 of our own Constitution century the United States Su- ago A State, 620, Me., Christian v. 268 A.2d juror challenges for preme Court said (1970). alternative, In the Thi- cause: trial beault maintains that the court abused upon chal- refusing grant
its discretion in
of the issue is
affirmative
“The
jurors
lenges
respect
cause with
the actual
challenger.
shows
Unless
in the mind
who admitted
Thibeault
an
believed
existence of such
presumption
hospital.
juror
once been in a
will raise the
mental
as
juror need not necessari-
partiality,
brought
Whether a fact
out on
Reynolds v.
.
.
. .”
ly be set aside
requires
voir
a
depends
dire
new
States,
L.Ed.
98 U.S.
United
high potential
whether
fact
has “such
in Irvin
(1878),
approval
quoted
prejudicial
impact upon
for ineradicable
Dowd,
723,81 S.Ct.
366 U.S.
jurors
as to
ultimately
who
become
(1961).
HOI title to “acquired if the defendant “Q mention Did Thibeault] [Dale visit, he police subsequent looking about the officers furniture anything “receiving” within guilty saying be found at furniture stolen, the statute. thought taking meaning it set? the television serial number of case, in the instant recognize We Yes, “A he did. point in may acquired at have been “title” “Q you gave And still Charlie O’Connell well aware were time when money after that? whereabouts, and conceal- the property’s “A I if before don’t remember that was police, property from ment paid after I O’Connell. owner, virtual- the true therefore from against receiv- statutes
ly But impossible. purpose. serve a dual ing stolen at at “Q arrived You went work prevent First, they designed are 11, right? work concealing the aiding thieves from “A Yes. Second, of stolen whereabouts “Q say that investigator You heard market for eliminate the laws seek to these at noon? apartment they were very act by proscribing goods, stolen “A Yes. with thieves. entering transactions into “Q testimony, didn’t they, And from defining statute revising In criminal stay very long, they? there property, our offense of “A I don’t think so. approach recom- legislature followed “Q it And wasn’t until 4 o’clock by the drafters of the Model Penal mended appeared and col- O’Connell Charlie used the words The old statute Code. right? money, lected the concealing aids receives or “buys, Yeah, “A around there. to define the offense.4 property” “Q during period, the four-hour And replaces the term Code The Maine Criminal said, you and Dale never called “receives,” by the defined “buys” word him the furniture pay ‘Don’t because control or title.” possession, “acquires mean and we’ll lose our probably is stolen the drafters’ observation This accords with ’ money? to be ex- sought the essential idea “that No, “A he never me that.” told whether pressed acquisition control testimony, In view of this legal or of physical dominion sense of first correctly noted that if Thibeault power dispose.”5 police the furniture was learned from the statute, construing previous our to al- stolen and then decided nevertheless *7 we could be commit noted that the offense his wife to consummate the transaction low O’Connell, by buy ways, either payment Thibeault ted in three different by making to concealment of ing, receiving, aiding or in guilty of the offense be found Nelson, 29 Me. goods. State charged. properly instructed stolen restoring purpose May 1, it to the owner of superseded the 4. 17 as of M.R.S.A. § Code, it is stolen if he knows that section 359 of the Criminal commits theft dealer, part: or, provided property if he in the of a in case property. probably is stolen believes it buys, or aids in conceal- “Whoever receives “(2) Receiving Receiving means: stolen, knowing Defined. ing property, to stolen it be title; (a) acquiring possession, or control punished . . .” 359 shall be Section of security (b) selling lending the of or on the the the Criminal “retains the core of tra- Code property; ‘receiving’ to ditional Comment —1975 crime.” possession, transferring (c) retaining (Supp.1977). or 17-A 359 M.R.S.A. § actor has informa- or title after the control 206.8, (Tent. 2 § 5. Model Penal Code Comment belief, leading as knowledge to or tion him 1953). Draft No. The text of the Code’s be, property may is sto- the case len, defining the section offense reads: police.” notifying without “(1) person who receives In General. A property than stolen movable otherwise for possible juror (1849). confusion which Similarly, might under our new Crimi- Code, nal it is enough the accused have led the pos- believe that mere acquires goods title to knowl- stolen day, session of the furniture for one after edge of their stolen It is not character. being apprised by it was necessary participate that he in the conceal- stolen, act. could constitute criminal ment the goods. of As the Penal Model observed, Code drafters purchas- act of of Property III. Value ing taking or title stolen encour- goods Thibeault was convicted of sto- ages the existence stolen of market for $500, a property len more than Class worth practical standpoint, “From a it 362(4)(B). D offense. 17-A On M.R.S.A. § is important punish receivers in order appeal, the evidence Thibeault contends discourage theft. The existence and func- jury’s support was insufficient find- ‘fence,’ tioning provides of a dealer who of ing a value of more than We $500. a market for property, stolen is an assur- disagree. especially
ance professional thieves of ability gain.” to realize the unlawful Model The standard for the valuation of 206.8, Penal (Tent.Draft Code § Comment stolen for the property purpose deter 1, 1953). No. mining grade of receiv offense ing property stolen is fair market value. case,
In the instant paying act of part: 17-A in provides M.R.S.A. § encouragement support O’Connell lent thief, the future criminal ventures of the meaning “The ‘value’ shall be determined whether the thief was or someone according O’Connell following: to the else from whom obtained the sto- O’Connell provided “A. in Except as otherwise len convey furniture. It thief subsection, this value the mar- means the idea that is an cus- Thibeault available ket services at property value of the tomer, goods, cheap one interested in crime, the time or if place a buyer not afraid to shoulder the risks satisfactorily such cannot as- accompany purchase which certained, replacement cost merchandise. within a rea- services sonable after the crime.” time
Ordinarily
goals
combatting
concealment of property from true owners
long
Maine has
followed the
and the
elimination
for sto-
demand
is
personalty
compe
rule
an owner of
len goods go
particu-
hand
hand. On the
to testify
tent
to its value because of his
case,
lar
facts
assuming
presumed knowledge of the characteristics
first
acquired knowledge
peculiarities
property,
weight
of his
furniture’s
stolen character
from Officer
testimony being
to be accorded the owner’s
Ferland,
objective
the statutory
prevent-
Me.,
Doray,
jury.
left
State v.
ing concealment
of stolen
did not
held,
A.2d
We
State v.
come
play.
statutory
into
the other
Yet
Me.,
(1972), that there
Bay,
It was fair market upon theory mony this of criminal failed that to show cable, time it was liability copper the trial court instructed the of at the value stolen, jury. Though price court’s first in exceeded “The retail $100. set confusing, price structions were' somewhat cable retail of used cable new and the trial court the jury upon pears oranges. reinstructed de well and may be as unlike as conjecture fense counsel’s request. jury permitted We are convinced The cannot be dispelled that this second by guess figure set of instructions value at a as to and arrive
H03 fair not a and apartment was from his by permissible range afforded outside the furniture representation testimony.” Id. 335. Thibeault accurate been admit- not have a similar has occurred therefore should maintains that error and assuming that Even jury has been in evidence. his case and ted representation— make a value based an inaccurate finding allowed to was picture us testimony given as to the even solely on the owner has not the defendant and doubting its accura- pur- value of her furniture at the time she reason for slightest it, than value as of was chased rather its used used photograph note cy—we testimony' it was contention al- the time stolen. This critical merely to illustrate Gray’s testimony fails because Mrs. three witnesses. Offi- given by ready State all price they with the combined purchase end and Clarke testified cers Ferland apart- Mrs. the furniture from her house. furniture from Thibeault’s removed Gray also testified to Gray her that she identi- Mrs. testified ment. pieces current value of individual taken from Thi- her furniture as that fied residence, furniture from the Thi- personally sets of recovered by going beault’s residence, identifying beault and addition simple Bangor station For figures totals to more than $500. as hers. Her identification the furniture recovered example, with reference to the but was photograph from the was not made alone, Gray directly testified living room set Mrs. actual observation made from Thus, photo- it for new and that bought that she furniture itself. $700 the seized $500, she its used value to be support estimated added witness- graph merely noting only place. it was two months old It take its testimony es’ did not when stolen. The bedroom furni- testimo- recovered the direct offered illustrate was ture, testified, when she properly she cost was $800 witnesses and ny of State bought pur- purpose. it and was when first used evidence for that accepted into jury The McLain, Me., chased. informed 367 A.2d State year Upon set was one old when stolen. jury this evidence the at a could arrive error conclusion, reversible we no find figure depreciated for the value of the bed- for Thibeault of defendant conviction in the
room set.6 Accordingly, the receiving stolen counsel attempted Defense to show that be: entry must Gray purposefully Mrs. overestimated the denied. Appeal her furniture value of in order to collect a check reimbursement from her homeown- affirmed. Judgment company. er’s insurance But at most this for argument
was an to consider appropriately pressed appeal. and is not on GODFREY, Justice, dissenting. no in the evidentiary deficiency We find the trial good was no reason There proof value of the of the stolen furniture. chal- appellant’s grant refuse to justice to panel for cause lenges Photograph IV. Admission of the they believed who admitted have do not patient. We The contention is BMHI defendant’s last a former persons on of those picture that a the retention furniture recovered hold that cable, copper lightning see required rod State 6. value “It was not that the fact of Unlike lay jurors acquainted proof. Day, supra, by separate are well be established should purchase may inspection infer it furniture. Given from an with household having furniture, having age, price ac- from its articles or heard them described furniture, photograph necessarily depicting the be to a witnesses. need cess jury’s value cannot at- informed of what assessment of can see for themselves. *9 Many things speak speculative. their State v. as own value.” tacked Gerrish, v. Per 78 Me. 23-24 State ley, (1894). 86 Me. 433 appellant perempto and after exercised his jury per was a se violation the state or federal in challenges constitutions order to conclude two of them remained on the ry appellant unjustly that was treated jury. Though trial the seven said that their leaving strong, decision, them there in face of his belief would not influence their timely, protests. and insistent Appellant might a possibility they there remained made known to trial early an expectations. meet their own not See Sil stage that, of the proceedings because States, v. United verthorne F.2d possible prejudice, he did not want persons (9th 1968). Furthermore, Cir. even on the who knew his as status though the seven they said would not be a former BMHI patient. influenced, there a danger was of prejudice if, deliberations, during they communicated
Appellant does have not to establish that their belief to other members the mere fact that defendant has under- a who had not been possible examined on gone hospital treatment a will at mental prejudice. “always” “high potential have such for iner- adicable prejudicial impact” on who Any appellant’s to prove evidence status ultimately jurors become as a deny him a patient as former BMHI would have been fundamentally fair trial. There is no need in prejudicial his case. inadmissible conjure with so a generalization broad in Evidence, Maine Rules of Rules 401- See simple order to resolve the issue in this a 404. He moved for mistrial and chal- case. lenged for cause panelists the seven before majority appellant’s request treats as put expense of a full State was piece if it whimsy grounded were a not timely appellant trial. Since made indica- any reality in possible prejudice. I do prejudiced felt tion he would be not know —and anyone neither does else— jurors’ specific him a belief about had whether appellant actually prejudiced was impact, he high potential prejudicial for in the jury’s deliberations. He certainly given should be a new trial. be, thought he would and the court is as- suming much declaring too in he was not. publicity, days widespread In these We have no basis whatever holding, for as to cases jurors exposure have often- some effect, we do in hostility attitudes jurors prospective are When prior trial. toward with known prob- mental re exposed such a mistrial or publicity, lems have been exorcised from the popu- re always is not moval of the venireman lace. It equally naive to assume that it Dowd, 717, 81 366 U.S. quired. Irvin v. ask venire-persons sufficed to holding Mere ex 6 L.Ed.2d S.Ct. belief was an once necessarily lead posure publicity does inmate they whether thought they could jurors form belief a about prospective come to a fair verdict. They may disregard the case. facts dire, easily
On voir
more
than
panel
supposed
the entire
ex-
information
posed
actually
an
they
information that
formed
caused six mem- when
have
panel
belief,
party’s
bers of the
a
to form the
a fact
issue
about
which
about
so,
dire,
reputation.
held before
Even
convictions
voir
record
appellant had
patient
been a
been
in such cases. Mar
BMHI.
have
reversed
States,
The court
appellant’s
denied
request
for
shall United
U.S.
dire,
(1959),
Supreme
individualized voir
with the result that
H05 experience, its wisdom and erations individually. into his chambers All seven bring not extra facts doing in so it must judge they told that would not be influ- items, every In jury that into criminal they enced the news room. jurors only case on evidence of case endeavor see decide the we must record, prejudice no in the confines of the and that felt do not [consider] against specific as a result of articles. . facts about jury defendant . . room The a for mistrial. judge specific trial denied motion then trial. trial, a new Reversing granting said, opin- a curiam Supreme per in Court drawing a or ex- The new costs 1173,
ion, 312, page at page 79 S.Ct. at as cusing large veniremen are several jurors exposure of “We have here the requested as is and afforded long relief trial a which the information of character Knowledge appellant’s to trial. prior judge prejudicial it could not ruled was so posed at patient as BMHI a status a former directly be as evidence. offered prejudice, and danger appel- ineradicable cer- prejudice to is almost the defendant some should have been afforded relief lant as that evidence great tain to be when least, very court. At the by the trial news accounts jury through reaches the have excused ve- court should trial prosecution’s as it is part when a actually had a who formed belief niremen States, v. evidence. Cf. Michelson United patient appellant was a former at 213, 469, 475, 218, 335 69 93 U.S. S.Ct. Those seven individuals had not BMHI. 168, may L.Ed.2d It indeed be [173]. potentially exposed prej- merely been greater tempered by for it is then not actually had but formed udicial information protective procedures.” a former opinion appellant panel have judgment When members of the actual trial patient. The BMHI belief, information not re- ly formed a based on the case court be set aside and should in crimi evidence, ground in fact at issue a on the about a a new manded for trial trial, defendant’s record for the nal or about the a of discretion plain it was abuse ordinarily request be reputation, appellant’s a new trial should judge deny McMann, 435 granted. panel United v. States cause from remove for denied, (2d 1970), 402 F.2d 813 cert. been an inmate Cir. who believed I L.Ed.2d 646 would U.S. Health Institute. Bangor Mental States, (1971); v. su trial. Silverthorne United this as a fair not characterize pra; v. Myers, 190 Neb. State play, fair one aside idea of Leaving Harris, v. People N.W.2d 345 of pure that considerations suppose App.Div.2d 386 N.Y.S.2d prosecuting led the expediency would have join in with the de- opinion attorney United States this case to in McMann, Judge questiona- supra, page asking Friend- in that the fense at least Judge Goldberg’s kept jury. ly quoted as follows from off panel members ble McKinney, eager prosecutors tendency in United States There is a 1970). response, (5th F.2d Cir. Pavlovian oppose, 1022-23 á kind of “ makes. that the defense every request course, recognize, ‘All must judiciary, has as prosecution, as well is sanitizing of the room complete is done to see responsibility impossible. expunge from We cannot well ideal That criminal cases. subjective opinions jury deliberations the case. in this decision by our served jurors, expositions, their attitudinal These involve philosophies. their one
very that constitute human elements system, and strengths of our should not excommunicate
we cannot and jury deliberations. Neverthe-
them from delib-
less, jury may leaven its while