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State v. Mayberry
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MAINE SUPREME JUDICIAL COURT
Reporter of Decisions
Decision: 1997 ME 9
Submitted on Briefs December 20, 1996
Decided January 17, 1997
PANEL: WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ,
STATE OF MAINE
BRUCE V. MAYBERRY
[¶1] Bruce V. Mayberry appeals from a judgment entered in the Superior
Court (Cumberland County, Brodrick, J.) affirming his conviction
for assault, 17-A M.R.S.A. § 207 (Class D) (1983 & Supp. 1996),
entered in the District Court (Portland, MacNichol, J.) following
a trial. On appeal Mayberry contends that his conviction must be overturned,
inter alia, because he was not arraigned prior to trial and the court
failed to hold a probable cause hearing within forty-eight hours of his
arrest. We affirm the conviction.
[¶2] Mayberry was arrested for assault on July 7, 1995. Arraignment
proceedings commenced on July 10. The court informed Mayberry of his right
to a trial and a court-appointed attorney, and of the charge. Mayberry,
however, refused to cooperate, refused to identify himself and professed
not to understand anything. An attorney was appointed to represent him and
the court ordered a Stage One evaluation pursuant to 15 M.R.S.A. §
(Supp. 1996). Although an arraignment had actually taken place, the court
directed that the record reflect that "there has been no arraignment."
Following a trial on September 18, 1995, Mayberry was found guilty of assault.
[¶3] Mayberry appealed to the Superior Court, contending that he had
not been arraigned and that no probable cause hearing was held within forty
eight hours as required by M.R. Crim. P. 5A(d). This appeal followed the
Superior Court's affirmance of the District Court.
[¶4] M.R. Crim. P. 10 provides in pertinent part:
Unless otherwise provided by law or by Rule 5B, arraignment
shall be conducted in open court and shall consist of reading the indictment,
information or complaint to the defendant or stating to the defendant the
substance of the charge and calling on the defendant to plead thereto. The
clerk shall cause a copy of the indictment or information to be furnished
to the defendant or the defendant's counsel before the defendant is called
upon to plead and notation thereof shall be made in the docket. When the
offense charged is a Class D or Class E crime, a represented defendant may
enter a plea in writing without the necessity of an arraignment in open
court unless the court requires the defendant to appear personally. . .
[¶5] Mayberry contends that because he was not arraigned, his conviction
should be vacated. We disagree. The record reflects that the essential purposes
of an arraignment were fulfilled at the proceeding on July 10, 1995, when
the court informed Mayberry of the substance of the assault charge, his
right to a trial and to a court-appointed attorney. Indeed, an attorney
was appointed to represent him.
[¶6] Assuming that Mayberry's arraignment was substantially defective,
however, and contrary to his contention, unless a defendant can show prejudice,
a failure to comply with the arraignment procedure does not mean that a
conviction must be vacated. State v. Kovtuschenko, 576 A.2d 206,
207 (Me. 1990). Mayberry does not contend and certainly has not demonstrated
that he was prejudiced in any way because of any claimed defects in the
arraignment on July 10.
[¶7] Mayberry's additional contention concerning the lack of any probable
cause determination within forty-eight hours of his arrest is also without
[¶8] Rule 5A(d) of the Maine Rules of Criminal Procedure provides in
(d) Initial Determination of Probable Cause. When a person
arrested without warrant is not released from custody within 48 hours after
arrest . . . a District Court judge or justice of the peace shall determine,
within that time period, whether there is probable cause to believe that
an offense has been committed and that the defendant committed it.
. . . .
In the absence of a showing of such probable cause, the District
Court or justice of the peace shall discharge the defendant.
[¶9] Although a probable cause hearing was never held regarding Mayberry's
assault charge and Mayberry properly raised the issue before his trial by
filing two affidavits and a motion to discharge, he is not entitled to have
his conviction reversed. The remedy for a failure to find probable cause
is not to vacate a conviction, but to release the defendant. See Cluchey
& Seitzinger, Maine Criminal Practice, 5.2 at II-35 (1992). At
his trial Mayberry was convicted of assault beyond a reasonable doubt. Accordingly,
there is currently no real issue that probable cause did not exist to arrest
Mayberry for assault. Other issues raised by Mayberry were not raised before
the Superior Court and in any event, are without merit.
The entry is:
Attorney for the State:
Stephanie Anderson, District Attorney
Julia Sheridan, Asst. Dist. Atty.
142 Federal Street
Portland, ME 04101
Bruce V. Mayberry, pro se
39 Sandbar Road
Windham, ME 04062