State v. Atkinson

• Decision Date: 11 September 1974
• Citation: 325 A.2d 44
• Parties: STATE of Maine v. Paul E. ATKINSON.
• Court: Maine Supreme Court

Page 44

325 A.2d 44

STATE of Maine v. Paul E. ATKINSON.

Supreme Judicial Court of Maine.

Sept. 11, 1974.

Michael N. Westcott, County Atty., Wiscasset, for plaintiff.

Fitzgerald, Donovan & Conley, P. A., by J. Michael Conley, III, Bath, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

WERNICK, Justice.

Indicted on November 1, 1972 for having committed the crime of breaking, entering and larceny in violation of 17 M.R.S.A. § 2103, defendant, Paul E. Atkinson, after a trial by jury in the Superior Court (Lincoln County) was, on November 28, 1972, found guilty as charged.

Defendant's appeal from the judgment of conviction raises three issues for decision: (1) whether the presiding Justice erred in ruling that the 'corpus delicti' had been sufficiently established to authorize the evidentiary admissibility of extrajudicial admissions of the defendant; (2) whether the presiding Justice committed reversible error in denying to defense counsel the right to ask a prosecution witness who had testified as to admissions made by defendant at a party whether the witness was smoking marijuana at the time; and (3) whether defendant was entitled to a judgment of acquittal on the ground that the evidence in its entirety failed to justify a jury conclusion beyond a reasonable doubt that defendant had committed a 'breaking' (as one essential element of the crime charged).

We deny the appeal.

I.

We find no merit in defendant's claim as to inadequate proof of the 'corpus delicti.'

Within the criterion most recently considered in State v. Wardwell, 158 Me. 307, 183 A.2d 896 (1962); State v. Grant, Me., 284 A.2d 674 (1971); State v. Kelley, Me., 308 A.2d 877 (1973) there was here adduced sufficient

'credible evidence which, if believed, would create in the mind of a reasonable man, not a mere surmise or suspicion, but . . . a really substantial belief . . .' (284 A.2d p. 676)

that someone had committed a 'breaking' of the premises identified in the indictment. ¹

Independently of the admissions of the defendant, credible evidence had been introduced that for a substantial period before June 1, 1972 (the alleged date of the commission of the crime charged) the 'Pine Crest Motor Court', a motel situated in the Town of Edgecomb, had been for sale and for this reason no part of the motel was being used or occupied by anyone. Approximately two weeks prior to June 1, 1972, the owner of the motel, while showing it to a prospective purchaser, had taken the prospect through the office building of the motel. At the time, as the owner left the office building, he checked its security and satisfied himself that two exterior doors and two windows which provided the only access into the office building were 'all closed and locked.'

At approximately 10:00 p. m. on June 1, 1972, having received a telephone call from the Wiscasset Police, the owner went to the office building of the motel. He used his own key to unlock one of the doors and, upon entering, noticed at once that most of the keys for the various units of the motel and a four-slice toaster were missing. A quick inspection revealed that all the doors and windows of the office building were still closed and locked.

Subsequently examining more carefully, the owner discovered that on one of the doors of the office building there were 'scratches all around . . .' the area of 'the striker pad and the latch where the door closes.' The door was constructed with an 'exceptionally wide crack where the door struck on the striker.' By inserting a knife blade in this wide crack, the owner was able to cause the striking 'pendulum' to glide and thus have the door come open while it remained in a 'locked' condition.

This evidence goes beyond 'mere surmise and conjecture' and is sufficient to warrant

'in the mind of a reasonable man, . . . a really sustantial belief . . .'

that someone had committed a 'breaking' of the 'close' of the office building by tampering with the latch of one of its doors, using a knife, or similar instrument, to cause the door to open although it remained 'locked.'

The presiding Justice correctly allowed into evidence the extra-judicial admissions of defendant which, apart from the 'corpus delicti' question raised by defendant, were otherwise competent and admissible. ²

Second, defendant's contention is without merit on its own terms since, as the discussion ante shows, there was sufficient proof of the 'breaking' element (as the only element which defendant brings into question) to establish that the 'corpus delicti' of the crime charged in the indictment had been sufficiently shown to support receiving in evidence the out-of-court admissions of the defendant. Thus, even had the presiding Justice misconceived the 'corpus delicti', the record is clear that, notwithstanding deficiencies in his reasoning, his ruling was correct.

II.

A seventeen year old girl was at a party held after supper on June 1, 1972 at a place 'just down the road from the Pine Crest Motor Court.' She was presented as a witness for the State and gave crucial testimony as follows: (1) the defendant arrived at the party approximately a half hour after the witness; (2) he brought with him, and exhibited at the party, some keys and a toaster (among other items); (3) he tossed one of the keys to the witness and while she had it in her possession she saw that the key was attached to a black tag reading: 'Pine Crest Motor Court' and designating the number '9' ³; (4) in the hearing of the witness at the party defendant stated that: 'When he went in, . . . there wasn't much worth taking . . . of any value'; (5) and as to the place where he 'went in', defendant 'never mentioned the exact name . . . (h)e just said up the road a piece.'

On cross-examination defense counsel asked the witness: 'On that particular evening were you smoking marijuana?' The prosecutor objected to the question and the presiding Justice excluded it. Defense counsel made clear on the record that his reason for asking the question was: 'If this witness was smoking marijuana that night . . . (her) memory of the night would be somewhat unclear.'

By this explanation defense counsel revealed that the materiality of his question depended upon the premise that judicial notice may be taken that marijuana smoking adversely affects human faculties critical to testimonial accuracy. The validity of this premise is doubtful, cf. State v. Cedre, Me., 314 A.2d 790 (1974). We find, however, that we need not here reach the issue since we sustain the ruling of the presiding Justice on another ground.

At the time defense counsel put his question to the witness nothing was yet in evidence, or called to the attention of the presiding Justice, to indicate behavior of the witness at the party reasonably suggesting that her perceptual, or memory, faculties were then impaired. The question posed to the witness (1) could require her either to admit to a criminal act or, alternatively, to claim privilege against self-incrimination, and (2) might well engender reactions of strong hostility against the witness in light of attitudes toward marijuana smoking currently prevalent in our society. The question thus had high potential to create undue prejudice against the witness which could induce unjustifiable discrediting of her testimony by the jury. For this reason, in the absence of at least some preliminary foundational showing that on the night in question the witness had been behaving in a manner indicating that her perceptual, or memory, faculties, as they then were operating, were fairly open to attack, the presiding Justice's exclusion of the question was within the limits of the broad judicial discretion reposed in the presiding Justice to...