State v. Schmidt

• Decision Date: 07 October 2008
• Docket Number: Docket: Was-07-304
• Citation: 957 A.2d 80,2008 ME 151
• Parties: STATE of Maine v. James F. SCHMIDT.
• Court: Maine Supreme Court

957 A.2d 80

2008 ME 151

STATE of Maine v. James F. SCHMIDT.

Docket: Was-07-304

Supreme Judicial Court of Maine.

Submitted on Briefs: June 26, 2008.

Decided: October 7, 2008.

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 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 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, ¶ 7, 741 A.2d 1074, 1076-77 (quotation marks omitted).

[¶ 11] The trial court conducted individual voir dire as to numerous potential jurors. To the extent the court refused to allow Schmidt to conduct additional individual voir dire, that refusal was not error. Although "[a]reas of potential juror bias should receive special attention during voir dire," it is within the trial court's discretion to "appropriately craft questions probing for juror bias." Id. ¶ 7, 741 A.2d at 1077. As M.R.Crim. P. 24 plainly permits, the court elected to conduct the initial examination of the jury itself. Only if the additional questions Schmidt's attorney sought to ask were both relevant to jurors' qualifications and had not been fully explored by the court would Schmidt's contentions concerning the voir dire have merit. See M.R.Crim. P. 24(a). It is clear from the record, however, that the court spent a great deal of time questioning the jurors as to potential prejudice, and fully explored every area into which Schmidt requested additional inquiry. See Collin, 1999 ME 187, ¶¶ 7, 8, 741 A.2d at 1077 (noting that the court may address juror bias through more generalized questions than the defendant wishes, and need not question jurors "in the exact manner requested by [the defendant]"). The court neither erred nor acted beyond its discretion in refusing Schmidt's request for additional voir dire.

[¶ 12] Schmidt also contends that the court should have excused for cause two jurors who, he asserts, manifested prejudice. We disagree. Juror #82 indicated that she had read two articles about the case in the local newspaper, and that she knew nine of the witnesses, but also stated that she had no "tight connections" with any of the witnesses; that she was "not friends [with any witnesses], per se," but instead "just know[s] these people"; that she had never discussed the case with any of the witnesses she knew; and that she could be fair and impartial in deciding the case. Further, although Juror # 82 noted that the articles "came across that [Schmidt] had done it" and that they were "kind of worded [to suggest that] a scheme happened," she also explicitly stated that she had not formed any of her own opinions about the matter, had not found the articles persuasive either way, and had only skimmed the articles. Likewise, Juror # 75 was acquainted with sixteen of the forty-two witnesses on the witness list, but stated that she had no prior knowledge of the case, that she would not give any of those sixteen any more credibility than any other witness, that it would not be personally difficult for her to sit in a case in which she knew some of the witnesses, and that she could be fair and impartial in deciding the case. The court was persuaded by the explicit statements of both jurors that they could decide Schmidt's case on a fair and impartial basis, and we do not disturb that decision.

[¶ 13] Schmidt also contends that certain statements made by potential jurors in front of the rest of the jury pool operated to taint the entire pool. The statements to which Schmidt refers, made by four potential jurors in response to the court's question—"Is there any juror who's familiar with the facts of this case from any source whatsoever?"—were limited statements, two of which were truncated by the court to such an extent that their meaning was too vague to taint the jury pool in any way. Moreover, we agree with the State that "[t]he statements provided no more information about the crime to members of the jury pool and were no more prejudicial to the defendant than the reading of the indictment itself." In addition, the record indicates that a juror who was disqualified for expressing prejudice against Schmidt did not have the opportunity to taint the jury pool because of actions taken by a court security officer to prevent her from speaking about the case to the remaining potential jurors.

[¶ 14] Finally, we discern no error or abuse of discretion in the court's disqualification for cause of the defense attorney's father without questioning the father as to his potential bias.

B. Closing Arguments

[¶ 15] Schmidt next contends that statements made by the prosecutor during the State's closing argument constituted an impermissible attack on Schmidt's credibility. Specifically, Schmidt refers...