State v. Michael Chasse

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 90
Docket:	Pis-99-219
Submitted
on Briefs:	February 25, 2000
Decided:	May 17, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

STATE OF MAINE

v. 

MICHAEL CHASSE

DANA, J.

	[¶1]  Michael Chasse appeals from a judgment of the Superior Court
(Piscataquis County, Marden, J.) following his conviction by a jury of robbery
(Class A) in violation of 17-A M.R.S.A. § 651 (1983),{1} conspiracy to commit
robbery (Class B) in violation of 17-A M.R.S.A. §§ 151 & 651 (1983),{2}
aggravated assault (Class B) in violation of 17-A M.R.S.A. § 208 (1983),{3} and
burglary (Class B) in violation of 17-A M.R.S.A. § 401 (1983).{4}  The court
sentenced him to twelve years, eight years, four years and two years
respectively, to be served concurrently.  Chasse argues on appeal that the
court denied him his constitutional right to testify on his own behalf, he was
unduly prejudiced by his appearance before the jury in prison garb following
his escape and capture during the trial, he was placed in double jeopardy by
being convicted of both robbery and aggravated assault based on the same
facts, the court abused its discretion by failing to grant his motion for a
mistrial, and the evidence was insufficient to support his conviction of Class
A robbery.  Finding no error, we affirm.

I.  FACTUAL SUMMARY

	[¶2]  On February 25, 1997, Detective Sergeant Perry Antone
responded to a call from a residence in Brewer that someone had been shot. 
When he arrived on the scene he found the homeowner on the lawn holding
a gun.  After securing the gun, he entered the house and found a man, later
identified as Chasse, laying on the floor.  He also found a knife on the floor
just inside the doorway of the house.
	[¶3]  Chasse was eventually indicted on charges of robbery, conspiracy
to commit robbery, aggravated assault and burglary stemming from the
incident.  On the fourth day of his jury trial, Chasse effected an escape that
was captured on video by a local journalist.  Chasse's attorney sought a
continuance and a new trial based on Chasse's absence and his resulting
inability to testify.  The court, having viewed the video of the escape,
determined Chasse's absence to be voluntary.  The court delayed the
proceedings for a couple of hours, but ultimately denied the motions for a
continuance and a mistrial after conducting a voir dire of the jury and
determining that they were not aware of the escape.  The court also
determined that Chasse had waived his right to testify by voluntarily
absenting himself from the trial.
	[¶4]  The court instructed the jury that Chasse had elected to be
absent from the trial and that the jury should accord this fact no weight
whatsoever and the trial proceeded.  Chasse's attorney called his last
remaining witness who was a hostile witness.  In the course of his
testimony, the witness made reference to Chasse "run[ning] away."  Chasse's
attorney objected and the court instructed the jury to disregard the
statement.  The attorney again moved for a mistrial, but the court denied the
motion, noting that the jury was not even aware of the fact that Chasse had
been in custody during the trial.  With no more witnesses, both the State
and Chasse's attorney rested.
	[¶5]  Later that day, while in conference with both attorneys, the court
was informed that Chasse had been captured.  Chasse's attorney moved to
reopen the evidence.  The court denied this motion, again finding that
Chasse had waived his right to testify by absenting himself during the
presentation of the evidence and noting its concern that if the trial were
continued over the weekend, the jury could potentially become tainted by
exposure to news of the escape.
	[¶6]  Court was reconvened late in the afternoon for closing
arguments.  Chasse was present.  At Chasse's request the court again advised
the jury that no inferences were to be drawn from a defendant's presence or
absence in court in the course of a trial.  Closing arguments were made and
the court instructed the jury.  At a bench conference following this, Chasse's
attorney requested that the record reflect that his client was clad in prison
garb.  Nevertheless, the attorney made no objection to Chasse's attire at that
time or previously, nor did he request a mistrial based on the attire.
	[¶7]  The jury returned a verdict of guilty on all charges and Chasse
brought this appeal.

II.  DISCUSSION

	[¶8]  	Chasse's primary argument on appeal is that he was denied a fair
trial because of circumstances resulting from his escape and capture.  He
argues that he was improperly denied his constitutional right to testify on
his own behalf by virtue of the court denying:  (1) his motion for a
continuance during his absence from trial, (2) his motion to re-open the
evidence once he was captured, and (3) his motion for a mistrial based on
his failure to testify stemming from his absence from the trial.  He also
argues that he was denied a fair trial by virtue of his appearance before the
jury in prison attire during closing arguments despite his failure to object or
seek a new trial at the time.  Lastly, he argues that the court should have
granted his motion for a mistrial following the statement of the hostile
witness.
	[¶9]  Every defendant's right to testify on his or her own behalf is
rooted in the Fourteenth Amendment's due process clause, the Sixth
Amendment's compulsory process clause and the corollary to the Fifth
Amendment's protection against compelled testimony.  See Rock v.
Arkansas, 483 U.S. 44, 51-52 (1987).  However, it is within a court's
discretion to continue a trial in a defendant's absence once it determines
that the absence is voluntary and it affords the defendant an opportunity to
explain the absence.  See M.R. Crim. P. 43; State v. Butler, 674 A.2d 925,
927 (Me. 1996) (finding no abuse of discretion when court continued trial
despite defendant's absence and resultant failure to testify).  The court was
justified in its determination that Chasse had voluntarily waived his right to
testify by absconding on the last day of trial and continuing the trial in his
absence did not constitute a denial of the right to testify.  Therefore its
denial of his motion for a continuance at a time when his whereabouts was
unknown was not an abuse of discretion.
	[¶10]  We likewise review rulings on motions to reopen evidence for
an abuse of discretion.  See State v. White, 460 A.2d 1017, 1023 (Me. 1983)
(noting factors to be considered when reviewing such motions).  The reason
for the tardiness of the offer of Chasse's testimony in this case, i.e., his
escape from custody and subsequent capture, is not a proper justification. 
But for his capture, Chasse's absence and his implicit waiver of his right to
testify would have been final.  "The defendant's right to his day in court does
not permit him unilaterally to select whatever date his pleasure dictates." 
State v. Staples, 354 A.2d 771, 775 (Me. 1976).  Similarly, a defendant's
right to testify does not entitle him to testify only when he sees fit, such as
after the close of evidence and his return to custody.  The court did not
abuse its discretion by denying Chasse's motion to reopen the evidence
following his capture.
	[¶11]  With respect to Chasse's motion for a mistrial based on his
failure to testify, we have noted in similar circumstances "[i]f a mistrial were
to be declared whenever the defendant voluntarily absented himself from
trial, the defendant could, after evaluating the course of the proceedings
against him, simply leave the courtroom whenever he anticipated an adverse
verdict."  Id.  This statement is no less true simply because the defendant's
absence also prevents him from taking the stand.  Chasse cannot avoid the
consequences of his voluntary absence from trial by declaring prejudice after
the fact.  The court did not abuse its discretion by refusing to declare a
mistrial based on Chasse's voluntary unavailability for testimony during the
presentation of evidence.
	[¶12]  Due to Chasse's failure to object or move for a mistrial, we
review the trial court's failure to declare one sua sponte based in his
appearance in prison garb for obvious error, determining whether the error,
if any, is so great that we cannot in good conscience let his conviction stand. 
See State v. Berkley, 567 A.2d 915, 921 (Me. 1989).  The United States
Supreme Court has noted that courts invalidating convictions based on a
defendant's being tried in prison garb have generally required that the
defendant at least invoke his or her right not to be so tried:  "'A defendant
may not remain silent and willingly go to trial in prison garb and thereafter
claim error.'"  Estelle v. Williams, 425 U.S. 501, 508 (1976) (quoting
Hernandez v. Beto, 443 F.2d 634, 637 (5th Cir. 1971)).  The court further
noted that the particular evil that such cases sought to deter was the
practice of compelling a defendant to be tried in prison attire.  See id. at
507.  We cannot say that the court committed obvious error by not declaring
a mistrial on its own initiative because of Chasse being clad in prison clothes
given that he did not object or seek a mistrial.  Cf. State v. Leavitt, 625 A.2d
302, 306 (Me. 1993) (court did not abuse its discretion by denying
defendant's motion for a mistrial after jurors observed him in shackles and
handcuffs despite the inability to issue a curative instruction due to the
timing of the motion).
	[¶13]  Lastly, the court's refusal to grant a mistrial based on the
statement of Chasse's hostile witness was not an abuse of discretion.  "A
justice's refusal to grant a mistrial represents an abuse of discretion only
where there is a reasonable possibility that the objectionable evidence might
have been a contributing factor productive of a guilty verdict," and "[o]nly
where there are exceptionally prejudicial circumstances or prosecutorial
bad faith will a curative instruction be deemed inadequate to eliminate the
prejudice."  State v. Hilton, 431 A.2d 1296, 1302 (Me. 1981).  The court
took great precautions to insulate the jury from knowledge of Chasse's
escape and the court issued a curative instruction following the isolated
statement by the witness that we presume the jury followed, see State v.
Wood, 662 A.2d 908, 912 (Me. 1995) ("When reviewing the denial of a
motion for a mistrial, we presume that the jury will follow a curative
instruction.").  Therefore, we cannot say that the court abused its discretion
by failing to grant a mistrial following the witness's statement referring to
Chasse running away.
	[¶14]  Chasse voluntarily chose to absent himself from his own trial. 
He cannot now come before this Court and seek a new trial based on his
claims that the unavoidable consequences of that absence prejudiced him. 
Furthermore, the trial court took great pains to protect the integrity of the
trial in the face of threats to that integrity created by Chasse's own escape. 
We find no fault in how the trial was conducted in those adverse
circumstances.  We find Chasse's remaining arguments on appeal to be
without merit.
	The entry is:
			Judgment affirmed.Attorneys for State:

R. Christopher Almy, District Attorney
Michael P. Roberts, Deputy Dist. Atty.
C. Daniel Wood, Asst. Dist. Atty.
97 Hammond  Street
Bangor, ME 04401

Attorney for defendant (on appeal):

Randy G. Day, Esq.
181 Day Road
Garland, ME 04939

FOOTNOTES******************************** {1} . Section 651 of Title 17-A provides: 1. A person is guilty of robbery if he commits or attempts to commit theft and at the time of his actions: . . . . D. He intentionally inflicts or attempts to inflict bodily injury on another. . . . . 2. Robbery as defined in subsection 1, paragraphs A and B, is a Class B crime. Robbery as defined in subsection 1, paragraphs C, D, and E, is a Class A crime. 17-A M.R.S.A. § 651 (1983). {2} . Section 151 of Title 17-A provides in relevant part: 1. A person is guilty of conspiracy if, with the intent that conduct be performed which, in fact, would constitute a crime or crimes, he agrees with one or more others to engage in or cause the performance of such conduct. . . . . 3. A person who conspires to commit more than one crime is guilty of only one conspiracy if the crimes are the object of the same agreement or continuous conspiratorial relationship. 4. No person may be convicted of conspiracy to commit a crime unless it is alleged and proved that he, or one with whom he conspired, took a substantial step toward commission of the crime. A substantial step is any conduct which, under the circumstances in which it occurs, is strongly corroborative of the firmness of the actor's intent to complete commission of the crime; provided that speech alone may not constitute a substantial step. . . . . 7. It is no defense to prosecution under this section that the person with whom the defendant is alleged to have conspired has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, is not subject to prosecution as a result of immaturity, or is immune from or otherwise not subject to prosecution. . . . . 9. Conspiracy is an offense classified as one grade less serious than the classification of the most serious crime which is its object, except that conspiracy to commit murder is a Class A crime. If the most serious crime is a Class E crime, the conspiracy is a Class E crime. 17-A M.R.S.A. § 151 (1983). {3} . Section 208 of Title 17-A provides: 1. A person is guilty of aggravated assault if he intentionally, knowingly, or recklessly causes: . . . . B. Bodily injury to another with use of a dangerous weapon. . . . . 2. Aggravated assault is a Class B crime. 17-A M.R.S.A. § 208 (1983). {4} . Section 401 of Title 17-A provides in relevant part: 1. A person is guilty of burglary if he enters or surreptitiously remains in a structure, knowing that he is not licensed or privileged to do so, with the intent to commit a crime therein. 2. Burglary is classified as: . . . . B. A Class B crime if: (1) The defendant intentionally or recklessly inflicted or attempted to inflict bodily injury on anyone during the commission of the burglary or an attempt to commit the burglary or in immediate flight after the commission or attempt; (2) The defendant was armed with a dangerous weapon other than a firearm or knew that an accomplice was so armed; (3) The violation was against a structure that is a dwelling place; or (4) At the time of the burglary, the defendant had 2 or more prior Class A, B or C convictions for any combination of theft or any violation of this section or section 651, 702 or 703 or attempts to commit any of those crimes. For purposes of this subparagraph, the dates of the prior convictions must precede the commission of the burglary by no more than 10 years, although both prior convictions may have occurred on the same date. This subparagraph does not apply if the 2 prior offenses were committed within a 3-day period. The date an offense was committed is presumed to be that stated in the complaint, information or indictment, notwithstanding the use of the words "on or about" or the equivalent. 17-A M.R.S.A. § 401 (1983 & Supp. 1999).