State v. Burnham
| Decision Date | 12 January 1976 |
| Citation | 350 A.2d 577 |
| Parties | STATE of Maine v. Frederick J. BURNHAM and Robert A. Creamer. |
| Court | Maine Supreme Court |
Kenneth E. Kimmel, Sp. Asst. Atty. Gen., William P. Donahue, Dist. Atty., Alfred, for plaintiff.
Ray R. Pallas, Westbrook, for defendant.
Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.
Frederick J. Burnham and Robert A. Creamer were separately indicted for breaking, entering and larceny in the nighttime (17 M.R.S.A. § 2103). Without objection the two indictments were consolidated for trial. Jury trial was had in York County Superior Court on February 12 and 13, 1974. Both defendants were conviced and each has appealed.
We deny the appeals.
Under Rule 16(a), M.R.Crim.P., appellants sought to obtain a transcript of the criminal record of one Shelton L. Eaton from the State Bureau of Identification or the Federal Bureau of Investigation, and also a copy of any photographic identification which the State may have had of Eaton. This motion was denied on January 31, 1974.
Appellants have furnished us with no transcript of the hearing incident to this adverse ruling. However, in the briefs they argue that because a witness for the State testified to a statement made by Burnham to Eaton in the presence of Creamer and since Eaton was not a prosecution witness, it would have been theoretically helpful to the defense to have such knowledge of Eaton as might be disclosed by these records.
Rule 16(a), M.R.Crim.P., allows discovery upon a showing 'that the items sought may be material to the preparation of his defense.' We have no way of knowing whether any showing of materiality was made to the Justice below and, therefore, have no basis upon which to predicate a finding of error. None of the suggested conditions under which it might have been appropriate to order production of the requested information indicated in State v. Toppi, 275 A.2d 805, 812 n. 6 (Me.1971), exists in this record.
The State Bureau of Identification operates within the Bureau of State Police and is charged with the assimilation of criminal records. See 25 M.R.S.A. §§ 1541-1549. Nowhere in this statute is there any provision for the confidentiality of such records. It is therefore apparent that the defendants had a right to subpoena such records as may have existed in the Bureau. We recently commented that Rule 16(a) 'is not designed to be a labor saving device for defense counsel.' State v. Boyajian, 344 A.2d 410, 413 (Me.1975).
It is also obvious, since there was no showing that the State had in its possession any records from the Federal Bureau of Investigation, that such records would not be discoverable in a state court proceeding. The 'possession, custody, or control of the state' of discoverable material is a condition precedent under Rule 16(a) for a discovery order.
Appellants' position is without merit.
The State called a sixteen year old girl who, over objection that her testimony was hearsay, was allowed to testify: 'He (Burnham) had asked whether there was any place around to break into.' She was repeating her recollection of a conversation which she overheard between Burnham and one Shelton L. Eaton which occurred in the late evening prior to the commission of the crime in the early hours of the following morning. Burnham and Creamer had been seated in a blue Mustang on a street in Cornish, the locus of the crime, while Eaton, the young lady, and several others spent some time talking with them.
We have no problem with the admissibility of this testimony.
'Statements of design or plan . . . are in general admissible, so far as the design or plan is relevant to show the doing of the act designed.'
6 Wigmore on Evidence, § 1732(1), (3d ed.). At an early point this Court held:
'(D)eclarations of defendants, tending to show their formed determinations to commit crimes, are always admissible against them, when accused of committing the same.'
New Gloucester v. Bridgham, 28 Me. 60, 68 (1848); see Rockland & Rockport Lime Co. v. Coe-Mortimer Co., 115 Me. 184, 98 A. 657 (1916).
A bystander may testify to incriminating declarations of one person made in a conversation with another. United States v. Bucur, 194 F.2d 297 (7th Cir. 1952).
Our holding is likewise consistent with the new Maine Rules of Evidence which become effective February 2, 1976. Rule 801(d)(2) provides:
'A statement is not hearsay if:
(2) The statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity . . ..'
The testimony was properly admitted.
A Maine State Police officer arrived at the scene of the break shortly after it was discovered. He was given the registration number of a blue Mustang and set out immediately in pursuit. After proceeding several miles he overtook a vehicle which matched the description he had been given. On stopping the vehicle both defendants were found therein, Burnham being the driver. Since Burnham had neither an operator's license nor the registration of the vehicle, he was arrested and taken into custody. In moving the blue Mustang out of the travel portion of the highway, the trooper noted on the floor near the passenger seat 'a pair of what appeared to be brand-new gloves,' described as 'monkey face type work gloves.' These gloves were taken into custody and ultimately introduced into evidence over objection.
Appellants first argue that since the indictment did not allege the theft of the gloves their admission was improper.
The obvious purpose for introducing this exhibit was to bring into play the inference that may arise from being found in possession of recently stolen goods. State v. Gove, 289 A.2d 679 (Me.1972). As a condition precedent to the admission of goods said to have been recently stolen, it is unnecessary that an indictment for violating the provisions of 17 M.R.S.A. § 2103 allege the theft of those particular goods. In State v. Bickford, 308 A.2d 561 (Me.1973), a set of ornamental bells found in the possession of the defendant was properly admitted to support this inference despite the failure of the indictment to allege its theft. Such is the case here.
The second prong of appellants' argument is that there was insufficient evidence to prove that these particular gloves had been stolen incident to the breaking and entering charged.
The owner of the store testified that in addition to 338 cartons of cigarettes some work gloves were found to be missing, which had been displayed directly in front of the area where the cigarettes were kept. Another pair of gloves had been found at the rear of the building intermingled with some of the stolen cigarettes. The gloves bore the trademark 'Boss,' and the exhibit was identical. Of course, it is true that the store owner was unable to identify specifically the gloves recovered from the automobile.
The owner of the vehicle, testifying for the defense, suggested that the gloves may have been in the Mustang when he originally loaned it to the defendants. However, his cross-examination cast considerable doubt on whether such was the fact. As in State v. Small, 267...
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