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STATE v. WARNER12/26/1967
his mirror in your locker at all times
since you went
A. I brought it down here and I took it over to Arbo's
Garage. This mirror never left my possession."
The defendant moved for a mistrial based upon Officer MacArthur's testimony concerning matching up the mirror and his reference to Arbo's garage. Such a motion is addressed to the sound discretion of the presiding justice whose responsibility it is to safeguard the rights of both the defendant and the State. It is generally said that if the jury's ability to render an impartial verdict may have been affected, it is the judge's duty to grant a motion for a mistrial. State v. Slorah, 118 Me. 203, 106 A. 768, 4 A.L.R. 1256 (1919); State v. Sanborn, 157 Me. 424, 173 A.2d 854 (1961); State v. Hamilton, supra.; United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824). The justice's decision will not be overruled unless manifest wrong or injury has resulted. State v. Cox, supra.
The rule contemplates that there must be more than a theoretical danger of prejudice, however, and the examination of a witness cannot be expected to proceed under the completely antiseptic conditions of a hospital operating room. We find no real danger of prejudice. The officer's statement that he "matched it up", interrupted as it was at that point, was harmless. The jury had not been told with what he had matched it — perhaps with the gasket which he had also found — or whether the results of the matching were positive or negative. We see no prejudice to the defendant from the reference to Arbo's garage. Doubtless reasoning and intelligent men and women of the jury would expect police officers to attempt to compare the mirror found in the street with the one remaining on the defendant's car or with the marks on the side where one had been. The fact that they were not told by the State's witnesses that such a test had been made with results favorable to the State's position must have been interpreted by them as indicating the results were not favorable to the State's position.
We find no abuse of his discretion.
This situation contained an additional element which is worthy of comment. The State was apparently avoiding reference to the officer's trip to Arbo's garage. The defendant's counsel himself, in an attempt to cast doubt upon the manner in which the exhibit had been preserved, brought out that the officer had taken the exhibit to the garage. He undertook to ask the question quoted above although he knew that the mirror had been taken out for comparison with the mirror on defendant's car which defendant argued was illegally held at Arbo's garage, as is shown by the transcript on the hearing to suppress. Under such conditions the presiding justice may sometimes properly find that the asking of such a question is a calculated risk and that the questioner cannot successfully complain of being hurt by the answer he receives.
In any event, we do not find any violation of defendant's constitutional rights by the officer's examination of and photographing the outside of defendant's car at Arbo's garage. Police officers, charged with the responsibility of investigating the felonious death of Mrs. Charity, finding near the scene an automobile which they had reasonable cause to believe to have been the instrumentality of the crime, had not only the authority but the duty to hold the car for reasonable examination. No invasion of privacy — the evil which the constitutional prohibition against unreasonable searches and seizures opposes — was involved in inspection of its exterior. There was no search — only the examination of what was open and visible. Cotton v. United States, 371 F.2d 385 (9th Cir. 1967).
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