957 A.2d 80 (Me. 2008), Was-07-304, State v. Schmidt

Docket Nº:Docket Was-07-304.
Citation:957 A.2d 80, 2008 ME 151
Opinion Judge:CLIFFORD, J.
Party Name:STATE of Maine v. James F. SCHMIDT.
Attorney:Jeffrey W. Davidson, Esq., Cutler, ME, for James Schmidt., Michael E. Povich, District Attorney, Benjamin P. Dyer, Asst. Dist. Atty., Ellsworth, ME, for the State of Maine.
Case Date:October 07, 2008
Court:Supreme Judicial Court of Maine
 
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957 A.2d 80 (Me. 2008)

2008 ME 151

STATE of Maine

v.

James F. SCHMIDT.

Docket No. Was-07-304.

Supreme Judicial Court of Maine.

October 7, 2008

Submitted on Briefs: June 26, 2008.

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[Copyrighted Material Omitted]

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Jeffrey W. Davidson, Esq., Cutler, ME, for James Schmidt.

Michael E. Povich, District Attorney, Benjamin P. Dyer, Asst. Dist. Atty., Ellsworth, ME, for the State of Maine.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, SILVER, and GORMAN, JJ.

CLIFFORD, J.

[¶ 1] James F. Schmidt appeals from a judgment of conviction entered on a jury verdict in the Superior Court (Washington County, Wheeler, J. ) finding him guilty of two counts of theft by unauthorized taking or transfer (Class B), 17-A M.R.S. § 353(1)(A), (B)(1) (2007); six counts of theft by unauthorized taking or transfer (Class C), 17-A M.R.S. § 353(1)(A), (B)(4) (2007); one count of theft by misapplication of property (Class B), 17-A M.R.S. § 358(1)(A), (B)(1) (2007); and one count of negotiating a worthless instrument (Class C), 17-A M.R.S. § 708(1)(A), (B)(2) (2007). Schmidt challenges the jury selection process, the prosecutor's statements made during closing arguments, and the sufficiency of the evidence supporting each

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count of his conviction. We affirm in part and vacate in part.

I. BACKGROUND

[¶ 2] Viewing it in the light most favorable to the State, see State v. Woo, 2007 ME 151, ¶ 5, 938 A.2d 13, 14, the following evidence was admitted at trial. In June of 2005, Schmidt began efforts to purchase a three-story building located on Main Street in the City of Calais. Schmidt indicated that he planned to renovate the building on behalf of his non-profit organization, the Wantaqo'ti Foundation (the Foundation), to benefit Native American and disadvantaged people.

[¶ 3] Schmidt presented a business plan to the City to obtain loan funds with which to create retail and residential space in the building. The City, through its Loan Review Board, granted Schmidt a loan from its Economic Development Loan Fund in the amount of $100,000. Of that amount, $70,000 was used to purchase the building, and the remaining $30,000 was to be disbursed in increments to Schmidt as a construction loan to complete the renovations. An additional $40,000 was to be supplied by the Foundation. The parties closed on the property on July 15, 2005.

[¶ 4] Over the next eight weeks, the City disbursed to Schmidt, in increments of a few thousand dollars each week, the $30,000 in construction loan funds. Although the checks were made out to the Foundation, they were deposited into a bank account from which only Schmidt had the right to draw funds. The construction loan funds were to be used only for materials and labor for the building's renovation, and were not to be used for salary payments to Schmidt or to anyone else.

[¶ 5] By the terms of his agreement with the City, Schmidt was to begin making monthly loan repayments to the City on September 1, 2005. Schmidt never paid to the City any amounts due on the loan.

[¶ 6] Meanwhile, Schmidt hired numerous subcontractors and purchased various materials to complete construction on the building. Schmidt failed to pay, in accordance with their agreements, at least six of these subcontractors and suppliers, including: (1) $6729.46 to Gregory Pollack of A & E Plumbing, (2) $3579.39 to William Barnett of Riverside Electric, (3) $8680.89 to Johnson's True Value, (4) $6089.10 to Mark Wright of Mark Wright Construction and Disposal, (5) $1100 to Zaccheriah Gidney, and (6) $2380 to Steven Scott. Schmidt also wrote numerous checks over the course of several weeks totaling more than $10,000 to various subcontractors, suppliers, and other purveyors. Those checks were not honored by the bank because of insufficient funds in the account. Instead, Schmidt used the City's loan funds to pay a salary to himself, and to his girlfriend.

[¶ 7] By indictment dated December 13, 2005, Schmidt was charged with one count of theft by unauthorized taking or transfer (Class B), 17-A M.R.S. § 353(1)(A), (B)(1), and six counts of theft by unauthorized taking or transfer (Class C), 17-A M.R.S. § 353(1)(A), (B)(4). The State later consolidated these counts with those of a second indictment, dated June 21, 2006, charging Schmidt with: theft by misapplication of property (Class B), 17-A M.R.S. § 358(1)(A), (B)(1); theft by unauthorized taking (Class B), 17-A M.R.S. § 353(1)(A), (B)(1); and negotiating a worthless instrument (Class C), 17-A M.R.S. § 708(1)(A), (B)(2).

[¶ 8] Following a four-day trial in October of 2006, a jury found Schmidt guilty on all ten counts. The court sentenced Schmidt to eight years incarceration with none suspended as to the three Class B

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counts, and to four years incarceration, none suspended, for all remaining counts, to be served concurrently. The court also ordered Schmidt to pay restitution in the amount of $82,908.33. Schmidt filed this appeal.

II. DISCUSSION

A. Jury Selection

[¶ 9] Schmidt first contends that jury selection for his trial was “ constitutionally unfair" in several respects. He argues that his right to individually voir dire the jury pool was impermissibly denied, that the court erred in failing to excuse for cause two jurors who expressed bias, that the jury was tainted by statements made by potential jurors in front of the entire jury pool, and that the court impermissibly disqualified the defense attorney's father for cause without having questioned the father as to his potential bias.

[¶ 10] “ The trial court has broad discretion over the conduct of voir dire, and the court's decisions in that area will be upheld absent abuse of that discretion." State v. Collin, 1999 ME 187...

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