State v. Curtis

• Decision Date: 10 October 1972
• Citation: 295 A.2d 252
• Parties: STATE of Maine v. Rodney L. CURTIS.
• Court: Maine Supreme Court

Page 252

295 A.2d 252

STATE of Maine v. Rodney L. CURTIS.

Supreme Judicial Court of Maine.

Oct. 10, 1972.

David M. Cox, County Atty., Bangor, for plaintiff.

Noel K. Evans, Millinocket, for defendant.

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

ARCHIBALD, Justice.

The defendant, indicted for assault and battery of a high and aggravated nature (17 M.R.S.A. § 201), elected to waive trial by jury and, after trial before a single Justice of the Superior Court, was convicted of simple assault. He has appeaed and assigns, as a basis therefor, the following reason:

'The court erred in refusing to grant a continuance upon requst of Defendant's counsel and such error was prejudicial and material to the conduct of Defendant's defense and constitutes reversible error.'

We summarize the sequence of events which must be considered in reaching our conclusion.

Sept. 11, 1970-Defendant was indicted by the grnad jury.

Sept. 14, 1970-Defendant was found to be indigent and counsel was appointed to defend him.

Sept. 16, 1970-Following arraignment defendant entered a plea of 'not guilty.'

Sept. 21, 1970-Counsel for defendant filed a written motion for a continuance, ¹ which was denied.

Sept. 22, 1970-Defendant, in writing, waived trial by jury and the trial commenced.

Sept. 23, 1970-During the morning session on the second day of trial counsel for defendant moved, orally, for a continuance to allow him time to 'attempt to have Mr. Nash here as a witness.' ² At that time counsel also noted that he had been unable, 'due to the setting of the trial date,' to locate one George Crocker, purportedly an eyewitness to the events in question. Later that morning, and prior to the noon recess, the court informed counsel for defendant that '(i)f Mr. Nash is not here by the time we conclude the (noon) recess . . . then we will proceed without Mr. Nash.' The record discloses no further reference to either witness (Crocker or Nash) and, immediately following the noon recess, the defense rested.

Although appellant fails to specify in his point of appeal the motion to which it refers, viewed in its broadest sense we consider the appeal to require discussion of two related areas. Accordingly, we with consider appellant's contention that the presiding Justice's denial of defendant's motion for a continuance was prejudicial to his defense, first, as it pertains to the adequacy of time for preparation for trial and, secondly, as it pertains to the unavailability of witnesses.

Whether or not a continuance will be granted in a given case has long been considered to be a matter entirely within the discretion of the presiding justice. In reviewing such discretionary rulings this Court looks only to see 'if there has been a clear abuse of that discretion.' State v. Carll (1965), 161 Me. 210, 214, 210 A.2d 680, 682. Furthermore, the burden of showing such an abuse of discretion rests upon the party alleging the abuse. State v. Hume (1951), 146 Me. 129, 78 A.2d 496.

Appellant's first contention, namely, that his appointed counsel had insufficient time to prepare for trial, is without factual support. Counsel for defendant was appointed September 14, 1970, a fuill eight days prior to trial. Other than a general allegation of 'lack of reasonable opportunity to present a defense,' appellant has failed to specify any 'occurrences at trial which would suggest that he was prejudiced or that his counsel was disadvantaged by lack of preparation.' State v. Rastrom (Me.1970), 261 A.2d 245, 246. In fact, the record reveals only one instance where it was suggested that defense counsel had not had sufficient time to prepare for trial. That occurred during the second day of trial when counsel informed the Court that he was unable to locate George Crocker 'due to the setting of the trial date.' The record supplies no evidence in support of this purely conclusory statement. Thus, absent a factual showing that either the furtherance of justice required a continuance or that actual prejudice in fact resulted, appellant has not sustained his burden of showing that the denal of a continuance by the presiding Justice constituted an abuse of discretion.

A closely related argument advanced by appellant is that the denial of a continuance violated his constitutional right to effective assistance of counsel. This contention is likewise without foundation. Appellant was assigned counsel by the Court eight days before trial. Aggravated assault and battery is not necessarily a complex crime. Thus, in light of 'the nature of the criminal charge to be tried, and whether or not the factual and legal issues appear to be relatively simple or complicated,' State v. Rastrom, supra at 248, it is apparent that eight days was adequate time for preparation for trial. Indeed, the transcript reveals no evidence whatsoever that lack of preparation time rendered appellant's counsel ineffective at trial. See Rastrom v. Robbins (1st Cir. 1971), 440 F.2d 1251, 1254; Avery v. Alabama (1940), 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377.

Appellant further contends that it was an abuse of...