State v. Farrington

• Decision Date: 20 February 1980
• Citation: 411 A.2d 396
• Parties: STATE of Maine v. Kenneth W. FARRINGTON.
• Court: Maine Supreme Court

Page 396

411 A.2d 396

STATE of Maine v. Kenneth W. FARRINGTON.

Supreme Judicial Court of Maine.

Feb. 20, 1980.

David M. Cox, Dist. Atty., Gary F. Thorne (orally), Asst. Dist. Atty., Bangor, for plaintiff.

Kobritz & Hamilton, Harold Hamilton, Sharma Trager, Law Student, Bangor (orally), for defendant.

McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS and GLASSMAN, JJ.

WERNICK, Justice.

Indicted for perjury, 17-A M.R.S.A. § 451 (Supp.1979), defendant Kenneth W. Farrington, after a jury-waived trial in the Superior Court (Penobscot County), was adjudged guilty of false swearing, 17-A M.R.S.A. § 452 (Supp.1979), deemed to be a lesser included offense. Defendant has appealed from the judgment of conviction and makes two contentions: (1) the evidence of the falsity of defendant's statements was entirely circumstantial and, therefore, legally insufficient under a traditional rule which defendant says the Criminal Code has retained; (2) prosecutorial misconduct, violative of constitutional due process of law, brought about the necessity that defendant make any statements under oath in a judicial proceeding and, therefore, the instant prosecution of defendant based on particular statements thus made by him should not be permitted to be maintained.

We agree with defendant's contention on appeal that the evidence was insufficient to prove the essential element of the falsity of defendant's statements. We therefore sustain defendant's appeal, vacate the judgment of conviction and direct the entry of judgment of acquittal.

During the morning of June 19, 1979 defendant was found not guilty by the Lincoln District Court of having made an unauthorized use of a motor vehicle (17-A M.R.S.A. § 360). Defendant did not testify at this trial.

That afternoon, Timothy Hartford went to trial in Lincoln District Court for the same offense and was found guilty.

The same prosecutor conducted the two trials. As he was completing the presentation of the State's case at the trial of Hartford, the prosecutor noticed defendant standing in the back of the courtroom. Though aware that defendant had told a story to the police which was exculpatory of Hartford, the prosecutor then and there decided to call defendant to testify as the State's last witness. Defendant testified to the same story he had told the police. Immediately upon the conclusion of defendant's testimony, the prosecutor ordered him arrested for perjury. An indictment was returned accusing defendant of having made false material statements in testifying at Hartford's trial.

The allegedly false statements pertained to an incident which had occurred on April 30, 1979. At approximately 9:00 o'clock that night, two women were proceeding from Bangor to Lincoln, driving in an automobile along a two lane road. They noticed the taillights of a vehicle proceeding, as estimated, about a quarter to one-half mile ahead of them. They never saw the vehicle itself, or who was inside it, and they never came any closer to the vehicle than when they first observed it. Being engaged in conversation, they did not focus their attention on, or keep under continuous observation, the progress of the taillights in front of them.

Soon, as they proceeded up a hill but before they reached its crest, the women observed a loaded pulp truck overturned in a gully at the women's right hand side of the road. It was lying angled on its right side. As they brought their vehicle to a stop, the women saw a man, who it eventuated was Timothy Hartford, emerging through the window of the cab of the overturned truck. The women asked Hartford whether he was all right. He replied: "We're all right, just leave us alone." Then, he hollered to somebody, by name, and ran into the adjacent woods. The women did not look inside the cab of the overturned truck and did not examine all of the area immediately surrounding the truck or the area of the gully under the right side of the truck. Where they did look the women saw no other person. They then drove to Lincoln and notified the police.

Approximately twenty minutes later, they returned with the police to the site of the overturned truck. Shortly thereafter, in company with a police officer, and at a place several hundred yards away from the overturned truck, the women saw Timothy Hartford walking on the road with a man who turned out to be the defendant.

The police officer asked the defendant some questions. Defendant told the officer that he and Hartford had been fishing. When they returned to their vehicle, which was in the woods, they found it could not be driven because it was stuck in some mud. They walked out to the road to hitchhike into Lincoln, and they then came upon the pulp truck overturned in the ditch.

The person who had prosecuted defendant and Hartford in the Lincoln District Court was the only witness who testified at defendant's perjury trial regarding the statements made by defendant under oath at Hartford's trial. In his testimony he explained that he had no thought of calling defendant as a State's witness at Hartford's trial until he happened to notice defendant watching the trial from the back of the courtroom. He acknowledged that there was no need to call defendant as a State's witness since he was satisfied that he had already presented enough evidence to convict Hartford. He also admitted that, as a prosecutor, he would not want a State's witness to present evidence exculpatory of Hartford. Yet, despite his awareness that defendant's statements to Officer Hamlin would provide an alibi for Hartford, he nevertheless called defendant as the last witness for the State. He offered two reasons for this unusual conduct by a prosecutor. First, notwithstanding that the District Court Judge had acquitted defendant, it remained his personal belief that defendant operated, or was a passenger in, the pulp truck which overturned in the ditch. Second, he "wanted to hear . . . (defendant's) side of the story."

The statements defendant had made under oath at Hartford's trial were described as follows. Defendant said that when he and Hartford came upon the overturned loaded pulp truck, no one else was in the area. Defendant further stated that he had not at any time seen Hartford in the cab of the overturned truck. Also, in response to a question whether he had left "the immediate vicinity" of the overturned truck while Hartford was there, defendant answered in the negative. Defendant made the additional statement that during all of the time he was in the "vicinity" of the overturned truck (that is, before he was seen walking on the road with Hartford several hundred yards from the truck), he neither saw nor heard anyone else there.

When all of the evidence had been presented at defendant's perjury trial in the Superior Court, defendant moved for judgment of acquittal, on the ground that the evidence presented to prove the falsity of the statements defendant had made at Hartford's trial was Only circumstantial and, therefore, the evidence could not be legally sufficient to support a conviction under the indictment against defendant.

The presiding Justice found defendant not guilty of the crime of perjury because, as the fact-finder, he entertained a reasonable doubt regarding the materiality of All of defendant's statements. However, the Justice found beyond a reasonable doubt that two of defendant's statements were false. He therefore adjudicated defendant guilty of false swearing, a crime not involving the materiality of the false statements as an essential element and which the Justice deemed to be a lesser included offense charged by the indictment for perjury. So concluding, the Justice denied defendant's motion for judgment of acquittal as to the crime of false swearing, thus in effect rejecting the validity of defendant's contention that the evidence of the falsity of the statements, because only circumstantial, was insufficient to support a conviction for the crime of false swearing.

In response to a motion by defendant for special findings of fact, the Justice found that defendant falsely stated that: (1) Timothy Hartford was Not an occupant of the pulp truck at the time it left the road and overturned, and (2) defendant Was "in the immediate area" of the overturned pulp truck at the time, and immediately after, the two women spoke to Hartford when he climbed out of the cab of the pulp truck.

The presiding Justice erred in refusing to order entry of judgment of acquittal. Defendant was charged with perjury, 17-A M.R.S.A. § 451(1)(A), and convicted of false swearing, 17-A M.R.S.A. § 452(1)(A). ¹ Both sections contain the following provision:

"It is an affirmative defense to prosecution . . . that proof of falsity rested solely upon contradiction by testimony of a single witness." 17-A M.R.S.A. §§ 451(3), 452(2)

The Comment to Section 451 explains that it "makes little change in the present law" and continues the rule set forth in State v. Rogers, 149 Me. 32, 98 A.2d 655 (1953), described therein as "well established" and "substantially unanimous." See also Newbit v. Statuck, 35 Me. 315, 318 (1853); Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495 (1945).

This traditional rule evolved from one which, by the early 1700s, had required proof of falsity by at least two witnesses who had knowledge by direct perception through their senses of facts contradicting the defendant's sworn statement. See United States v. Wood, 14 Pet. (39 U.S. 430, 440-41) 10 L.Ed. 527 (1840); 7 Wigmore, Evidence §§ 2040-42 (Chadbourne rev. 1978); Model Penal Code § 208.20, at 134-35; Comment (Tent. Draft No. 6, 1957). Accordingly, as applied by the large majority of jurisdictions, the substance of the traditional rule is as summarized in People v. Roubus, 65 Cal.2d 218, 220, 53 Cal.Rptr. 281, 283, 417 P.2d 865, 867 (1966):

"Direct, as distinguished from circumstantial, evidence of the falsity of the defendant's testimony by at least one witness...