State v. Farmer

• Decision Date: 27 August 1974
• Parties: STATE of Maine v. Vance J. FARMER.
• Court: Maine Supreme Court

Page 739

324 A.2d 739

STATE of Maine v. Vance J. FARMER.

Supreme Judicial Court of Maine.

Aug. 27, 1974.

Charles H. Veilleux, County Atty., Skowhegan, for plaintiff.

Perkins & Townsend by Clinton B. Townsend, Skowhegan, for defendant.

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

WERNICK, Justice.

Russell Landry, Jr. was employed by the Town of Norridgewock as a truck driver. One of his truck-driving duties during the winter months was to operate a snowplow to assist in snow removal from the streets of the town. The plow consisted of a single angled blade (in contrast to an inverted 'V' blade) attached to a cab and truckbody unit, and resting on the truck body immediately behind the cab almost entirely shielding the back of the cab was a steel 'wingbox' or 'sandguard' containing a horizontal slit to enable the operator, seated in the cab, to see to the rear.

Included within Landry's route for snowplowing was a street, 'Old Madison Road', on the westerly side of which stood the house of the defendant, Vance J. Farmer. A garage owned by defendant was situated on the easterly side of the street. Landry's practice in snowplowing was to proceed in a northerly direction on Old Madison Road, going on a first pass by defendant's house and continuing for several hundred yards northerly on Old Madison Road, then to turn around and travel in a southerly direction in a second pass by defendant's house. Usually, as Landry made his first (northerly) pass by defendant's house, his plowing would cause the driveway to defendant's garage to become full of snow.

Defendant believed that Landry could plow without causing a pile-up of snow in the garage driveway, and on at least two occasions defendant had so informed Landry and had explicitly requested him to avoid piling snow in the garage driveway.

On December 31, 1971 there was a fresh snowfall of 4 to 5 inches. Landry was plowing in the vicinity of defendant's house and happened to make his first pass by defendant's house while Timothy Paine, a thirteen year old boy who was living with the defendant, was standing in the garage driveway near the street shoulder. As Landry drove by, the blade of the plow threw snow in an amount and with force sufficient to knock Timothy off his feet. Timothy arose, ran at once to defendant's house and reported the incident to the defendant.

Defendant became extremely angry. He fetched his shotgun and stood in the front doorway of his house. As Landry was on his return (southerly) pass and had gone beyond defendant's house, defendant shouted curses at Landry and fired three shots toward the truck. Landry did not see defendant fire but heard the shots. He continued a short distance southerly beyond defendant's house and stopped to examine the rear of the truck. He found several fresh markings on the body and a broken taillight. (The next day when Landry repaired the taillight he found a lead pellet inside of it, and he delivered the pellet to the Norridgewock Chief of Police).

After he had finished plowing, Landry reported the shooting incident to the police. The Norridgewock Chief of Police and the Sheriff of the County, Francis B. Henderson, accompanied by Landry, went to defendant's house. Defendant came to the door and one of the officers asked defendant if he was the 'proud owner of a shotgun.' Defendant, without hesitation, replied that he was.

There ensued some further discussion on which the record is somewhat confusing. It is clear in the record, however, that defendant invited the officers and Landry into his house, and soon one of the officers mentioned defendant's dissatisfaction with Landry's snowplowing technique. Acknowledging that he was disturbed about it, defendant was preparing to discuss it in more detail when he was interrupted to be given 'Miranda' warnings. Defendant asserted that he knew his 'rights' but the officers persisted in reading the 'Miranda' warnings to him. Sheriff Henderson then asked defendant if his shotgun was in the house. Defendant answered that it was and forthwith took the Sheriff to the location of the gun. Defendant thereupon removed the gun from a drawer and delivered it to Sheriff Henderson. The Sheriff then arrested defendant, and defendant was taken to the police station. ¹

On January 9, 1973 defendant was indicted in the Superior Court (Somerset County) for having violated 17 M.R.S.A. § 201-A. ² The indictment charged:

'That on or about the thirty-first day of December 1972, in the Town of Norridgewock, County of Somerset, and State of Maine, the above named defendant, Vance J. Farmer, being armed with a firearm, to wit: 'a shotgun, unlawfully did attempt to strike, hit, touch, or do violence to one Russell Landry, Jr., in a wanton, willful and angry manner, having an intention and existing ability to do violence to the said Russell Landry, Jr.'

After a jury trial defendant, on January 24, 1973, was found guilty as charged and sentenced to serve two to four years in the Maine State Prison. Defendant has appealed from the judgment of conviction.

The points defendant raises on appeal were precipitated by the following events.

Prior to trial defendant had moved to dismiss the indictment claiming 17 M.R.S.A. § 201-A to be unconstitutional on its face because its provisions (1) establish 'cruel and unusual' punishment in violation of the Constitutions of Maine and the United States, (2) deny the 'equal protection of the laws' in violation of said Constitutions and (3) contravene the 'separation of powers' mandated by the Maine Constitution.

Also prior to trial defendant had moved to suppress, as evidence against him, the shotgun which defendant had delivered to Sheriff Henderson on the ground that the Sheriff's accepting and retaining, possession of the shotgun was a 'seizure' violative of the Fourth-Fourteenth Amendments to the Constitution of the United States.

These pre-trial motions of defendant were denied by the Justice presiding in the Superior Court and, on appeal, defendant assigns the rulings as reversible error.

After trial had commenced defendant moved to dismiss the indictment. Defendant claimed fatal deficiency in the indictment for failing to allege that, and the manner in which, the shotgun (alleged in the indictment to be the 'firearm' involved) was used to commit the underlying 'assault' charged. The motion was denied, and defendant on appeal claims this ruling to be error requiring reversal of the judgment of conviction.

During the further course of trial, defendant objected to the admission into evidence of the lead pellet identified in testimony as having been found in the taillight of the snowplow. The ground of objection was that the evidence failed to establish a continuity of possession sufficient to warrant a reliable identification. The presiding Justice's admission of the pellet into evidence is asserted by defendant on appeal to be error sufficiently prejudicial to invalidate the judgment of conviction.

When the State had completed presentation of its evidence, defendant moved for a judgment of acquittal (Rule 29(b) M.R.Crim.P.) The motion was denied, and defendant went forward with his own case including defendant's taking the stand to offer testimony in his own behalf. Although defendant did not renew his motion for judgment of acquittal at the conclusion of all the evidence and after the return of the jury's verdict failed to file either a motion for judgment of acquittal under Rule 29(b) M.R.Crim.P. or a motion for a new trial under Rule 33 M.R.Crim.P., defendant nevertheless asserts as one of his points on appeal that the judgment of conviction must be reversed because of the insufficiency of the evidence to support it.

We deny the appeal.

We consider, first, defendant's attack on the indictment.

Insofar as the indictment alleged expressly that the 'firearm' involved was a 'shotgun', the issue becomes narrowed to whether the indictment sufficiently alleges that defendant was 'armed.' Defendant's contention is that because the indictment states only that defendant was 'armed' (with a shotgun) and fails to allege that, and the manner in which, the defendant made a use of the shotgun to assist in the commission of the 'assault' charged, it is fatally deficient. Defendant maintains that whereas in common parlance the word, 'armed', is broad enough to signify that one is 'armed' who has possession or control of an instrument thus to have it available for offensive or defensive use as a weapon, in 17 M.R.S.A. § 201-A 'armed' has the more restricted meaning that the instrument must in some manner be used as a weapon to assist in the commission of the foundational 'assault.' Hence, contends defendant, the indictment's reliance solely on the word, 'armed', renders the indictment fatally deficient as subject to a reasonable interpretation that conduct of the defendant which vis-a-vis 17 M.R.S.A. § 201-A is innocent conduct might be the gravamen of the accusation against defendant.

By this argument defendant misconceives the meaning of 'armed' in17 M.R.S.A. § 201-A as applicable to the specific context before us in which defendant is charged to be 'armed' with a real gun. A person who commits an assault while he has in his possession or control a real gun available to him for use, offensively or defensively, as a weapon, and even if such real gun is not in any respect used in the commission of the assault, is, within the intendment of 17 M.R.S.A. § 201-A, committing the assault while 'armed' (with a 'firearm.') ³ This interpretation accords with the meaning attributed by the general current of authority to the concept, 'armed', in similar contexts. People v. Hall, 105 Cal.App. 359, 287 P. 533 (1930); Curl v. State, 40 Wis.2d 474, 162 N.W.2d 77 (1969); State v. Herkshan, 105 Ariz. 394, 465 P.2d 587 (1970); See: People v. Anderson, 236 Cal.App.2d 419, 46 Cal.Rptr. 1, 10 (1965). Cf. State v. Lynch, 88 Me. 195...