State v. Colomy

• Decision Date: 13 November 1979
• Citation: State v. Colomy, 407 A.2d 1115 (Me. 1979)
• Parties: STATE of Maine v. Kenneth COLOMY. STATE of Maine v. Michael FISHER.
• Court: Maine Supreme Court

Page 1115

407 A.2d 1115

STATE of Maine v. Kenneth COLOMY.

STATE of Maine v. Michael FISHER.

Supreme Judicial Court of Maine.

Nov. 13, 1979.

David W. Crook (orally), Dist. Atty., Caroline Greenleaf, Intern, Augusta, for plaintiff.

Bourget & O'Donnell by Norman C. Bourget (orally), Joseph M. O'Donnell, Augusta, for Colomy.

Burton G. Shiro, Lawrence T. Potter, Waterville (orally), for Fisher.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.

ARCHIBALD, Justice.

Kenneth Colomy and Michael Fisher were separately indicted for aggravated assault, 17-A M.R.S.A. § 208(1)(A). Since both offenses could have been joined in a single indictment, the State filed a motion for joinder, and a justice of the Superior Court ordered that the cases be "joined for trial purposes." Rule 13, M.R.Crim.P. Following a jury trial of the conjoined indictments each defendant was found guilty, judgments of conviction were entered, and each defendant has appealed. We deny both appeals.

Defendant Fisher premised his appeal on six points. Defendant Colomy adopted two of those but added a third point. We will resolve the various points of appeal, discussing the facts only as necessary to our decision on each point.

APPEAL OF MICHAEL FISHER

1-A. Issue of Joinder

There was no objection to the motion for consolidation, but Fisher now argues that it was obvious error to order the indictments joined for trial purposes.

The phraseology of each indictment was identical except for the defendants' names. There was a single victim of the assault, one Leroy Morton; the State represented it would place both defendants at the scene at the same time, and would offer testimony consistent with proving a joint participation in the assault by the defendants. At the hearing on the State's motion, there was no suggestion that the confession of either defendant would be offered in evidence, and there was assurance that no Bruton problem existed. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). There was no intimation then that there would be antagonistic defenses presented. From this undisputed background we can detect no error in ordering the joint trial, let alone any error that could lead to manifest injustice. The justice below did not exceed discretionary limits by his joinder order. State v. Rich, Me., 395 A.2d 1123, 1128 (1978).

1-B. Issue of Severance

During the course of the trial Fisher moved for severance based upon the argument that the defense of Colomy had become antagonistic to his position.

We conclude that the justice acted within the bounds of his discretion ¹ when he denied the motion for severance. His action is supported by the facts.

The alleged antagonism arose when defendant Colomy, after the State had rested, elected to testify and announced his intent to call a witness for the purpose of depicting Fisher as the assaulter. The State then was allowed to reopen and, on direct, examine the witness Colomy had proposed to call. This witness was cross-examined by both defendants. Colomy did testify, the substance of his testimony being to deny contact with Morton, asserting that the physical acts constituting the assault were committed only by Fisher. Colomy was cross-examined by both the prosecutor and Fisher's counsel.

The evidence is undisputed that prior to the assault both Colomy and Fisher went to the locus of the assault with the avowed purpose of assaulting the victim. Colomy had learned that Morton was visiting Fisher's former girlfriend (who was also the mother of Fisher's illegitimate child) and had communicated this information to Fisher. Both men then repaired to the scene which was the apartment where Fisher's father lived. Colomy was directed by Fisher to position himself at the front door to prevent Morton's escape. Fisher then entered at the back door, observed Morton's presence, and opened the front door to admit Colomy. The assault ensued, followed by the victim's flight from the premises.

There was evidence from which the jury could conclude that both defendants had personal motives for this assault. Morton was accused of having burglarized a cottage owned by Colomy's parents and, additionally, was suspected of having amorous relations with Fisher's former girlfriend.

The facts demonstrate that even if Colomy struck no blows, he was an accomplice of Fisher in a pre-planned assault, thus becoming equally responsible for the crime. We construed 17-A M.R.S.A. §§ 57(1), (2)(C), (3)(A) ² in State v. Porter, Me., 404 A.2d 590, 594 (1979), and held that one who aids another in planning the methodology for illegal conduct is "legally accountable" for the ensuing crime even though the other person does the physical acts required for the commission of the crime.

The presiding justice acted within the guidelines set forth in State v. Elwell, Me., 380 A.2d 1016, 1020 (1977), by keeping "a watchful eye over the proceedings," being sure that a severance was not necessary to protect the defendant from undue prejudice. See State v. Cuddy, Me., 366 A.2d 858, 860 (1976); Commonwealth v. French, 357 Mass. 356, 376, 259 N.E.2d 195, 213 (1970); See also Commonwealth v. Horton, --- Mass. ---, 380 N.E.2d 687, 694 (1978). The jury was fully instructed on the liability of an accomplice under 17-A M.R.S.A. §§ 57(1), (2)(C), (3)(A). With this background in mind, it was irrelevant whether Fisher or Colomy actually caused the bodily injury to Morton. Porter, supra, at 594; Horton, 380 N.E.2d at 694.

As we have pointed out, no Bruton problem existed, and defendant Colomy was available for full cross-examination by Fisher. Under those circumstances there was no abuse of discretion in refusing to grant Fisher's motion for severance. State v. Wing, Me., 294 A.2d 418, 424 (1972). Since it was not denied that Fisher and Colomy were accomplices in committing the assault, Colomy's defense (if such it was) cannot be seen as antagonistic to that of Fisher.

2. Judicial Interrogation of Witnesses

Fisher argues that because the presiding justice asked certain questions of Morton, Dr. Martyn Vickers, and Colomy, his right to impartiality on the part of the presiding justice was violated.

Subject to the obvious caveat to maintain judicial impartiality, and not to assume the posture of an advocate (State v. Haycock, Me., 296 A.2d 489 (1972)), a presiding justice "may interrogate witnesses." Rule 614, M.R.Evid. Our review of the record discloses no objections by Fisher to the very limited interrogation of these witnesses by the presiding justice. None of the questions suggested that the justice had any opinion on the facts being elicited. Rather, the questions were aimed at clarification. Thus, even if objections had been seasonably made, they would have no merit.

3. Prosecutorial Comments in Opening and Closing

In his opening statement to the jury the prosecutor began several sentences with the expression, "We know . . . ." Assuming that the repeated use of the expression "we know" in place of "the State will attempt to prove," might suggest that the prosecutor was expressing his personal opinion on the facts to be elicited, we deem this erroneous use of language to be harmless. See State v. Pullen, Me., 266 A.2d 222, 228 (1970). We have scrutinized the entirety of these remarks carefully to determine whether or not potential prejudice might have been thereby generated, and we can find none. State v. Dana, Me., 406 A.2d 83 (1979).

The justice below carefully instructed the jury that statements of the attorneys did not constitute evidence. He stated: "It is your recollection of the evidence that controls, not what the attorneys say it was, not what I say it is; but what the twelve of you recall." Reading the record in its entirety, it is obvious to us that the jury understood the comments of the prosecutor to be merely an opening summary of what the State anticipated it would prove. Furthermore, the State did in fact introduce evidence of the various facts commented on by the prosecutor and, in the main, there was no evidence to contradict these facts. While we do not recommend the use of such language, we find no prejudice to defendant Fisher resulted therefrom.

During the prosecutor's argument in summation and in rebuttal he is said, on appeal, to have misquoted the testimony. These arguments were not reported. As far as this claim of error is concerned, therefore, the matter is not capable of appellate review on this record. We will not decide such an issue on a silent record. State v. Taylor, Me., 343 A.2d 11, 21 (1975); State v. Greaves, Me., 281 A.2d 445 (1971).

4. State's Reopening

As we have previously stated, after the State and defendant Fisher had rested, Colomy indicated his intent to call a witness for the purpose of depicting Fisher as the one who assaulted Morton. To avoid any question that might arise because Fisher had technically rested and therefore might not be able to cross-examine this witness, the justice granted the State's motion to reopen its case and allowed it to call this particular witness. Rule 26(c), M.R.Crim.P., authorizes the presentation of further evidence after a party has rested its case "by leave of court." Refusing or granting such leave is reversible only for abuse of discretion. Glassman, Maine Practice, § 26.15. There was no such abuse here.

5. Judicial Expression of Opinion

Fisher next argues that he is entitled to a new trial because the presiding justice, during his charge to the jury, violated the admonition of 14 M.R.S.A. § 1105, which provides: "During a jury trial the presiding justice . . . shall not, during the trial, including the charge, express an opinion upon issues of fact arising in the case . . . ." This statute serves the salutary purpose of ensuring judicial impartiality and authorizes granting a new trial upon evidence of its violation. See State v. Scholtz, Me., 392 A.2d 1101 (1978), and cases therein cited.

We have...