State v. Gervais

• Decision Date: 09 April 1974
• Citation: 317 A.2d 796
• Parties: STATE of Maine v. James Pearly GERVAIS.
• Court: Maine Supreme Court

Page 796

317 A.2d 796

STATE of Maine v. James Pearly GERVAIS.

Supreme Judicial Court of Maine.

April 9, 1974.

Peter G. Ballou, Asst. County Atty., Arthur A. Stilphen, Asst. Atty. Gen., Portland, for plaintiff.

Daniel G. Lilley, Portland, for defendant.

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

DUFRESNE, Chief Justice.

On October 23, 1971 James P. Gervais, the defendant, was convicted by a Cumberland County jury of the crime of assault with intent to kill while armed with a dangerous weapon, in violation of 17 M.R.S.A., § 2656, ¹ the victim of the assault being one Harold Sargent. Sentenced to a term in Maine State Prison of not less than 5 years are not more than 20 years, the defendant appealed from the judgment, raising a number of issues wherein he claims the lower Court committed error. Only two of the defendant's point on appeal were briefed and argued to this Court The assignments of error not briefed nor argued are considered abandoned or waived. State v. Warner, 1967, Me., 237 A.2d 150; State v. Alley, 1970, Me., 263 A.2d 66; State v. Wilbur, 1971, Me., 278 A.2d 139. After consideration of the points properly before us, we deny the appeal.

On the evening of December 10, 1970 Harold Sargent, while patronizing the Cameo Lounge in Portland, Maine, was shot twice in the chest with a .25 caliber handgun. Both Mr. Sargent and one Roger Rivard at trial identified Gervais as the person who pulled the trigger.

In order to appreciate at their full value the grounds of appeal upon which the defendant relies for a reversal of his conviction, a recitation of the facts as presented by this record would be advantageous.

The evidence establishes that the shooting took place at approximately eleven o'clock as Sargent was returning from the dance floor toward the seat he had been occupying in company of some friends. According to his version at trial, he was within four or five feet of the defendant, who was seated at a table, when someone bumped against him. Raising his hand in a gesture of apology, he then heard shots and felt bullets entering his body. Staring the defendant in the face for several seconds, so he testified, he then saw a silver gun in the defendant's hand. He denied any conversation with Gervais and positively contradicted Rivard's testimony that he, Sargent, had given the defendant 'the finger.' Clutching his stomach, Sargent was said to have walked unsteadily to his table, where he sat down, told his friends he had been shot and within seconds fell to the floor where a person in his party administered first aid.

Rivard, a completely disinterested witness, testified somewhat differently from what Sargent stated on the witness stand. He said that he was sitting at a table behind that at which the defendant was seated and observed the whole incident. He further indicated that the table at which Gervais was then sitting alone was nearest the bandstand. He observed Sargent walking toward the defendant's table where he claims words were exchanged between the two men. As he asserted, although he could not hear what was being said, he could see the movement of their lips. Sargent, he told the jury, held up his hand and twice gave Gervais 'the finger', which Rivard described as raising the hand and extending the middlefinger in the direction of the defendant. After Gervais reciprocated in kind, Rivard heard the shots and saw two flashes of light near the defendant's right hand. He did not see the gun, nor did he notice that the defendant's right hand was bandaged. Sargent's subsequent collapse caused Rivard to watch Gervais' movements more closely thereafter and he followed his immediate departure from the lounge to a station wagon where he noticed the defendant crouching beside the vehicle. He saw him leave in a Volkswagen in the company of another person.

It is undisputed that the defendant, at the time of the shooting, was in the Cameo Lounge with friends, amongst whom was one William Culliton, who, defense witnesses asserted, was seated near Gervais. Witnesses confirmed the fact that the defendant approached the station wagon where he stood crouched by the front fender of the car. Culliton picked up Gervais at that point in a red Volkswagen, and several hours later both were stopped at an entrance of the Maine Turnpike in Portland and arrested. At the time of arrest the defendant was wearing blue and white striped pants, which had a tear in the crotch, and a grey or blue turtleneck sweater, while Culliton's dress consisted of pink pants and a pink floral shirt. Both were approximately of the same height and build with somewhat different color of hair.

The evidence further revealed that the gun involved in the assault was later that night found by the investigating officers buried in the snow near the front tire of the station wagon near the point where the defendant had earlier been standing.

Rivard at trial identified the defendant as a person with whom he attended high school several years before. He thought, however, that the defendant, at the time of the shooting, was wearing the pink pants which, he was sure, were split in the crotch.

Sargent, on the other hand, told his treating physician at the hospital that he did not know the person who shot him nor could he clearly identify his assailant's facial features.

Gervais at trial became a witness for himself and denied the shooting, claiming that his only involvement was in helping Culliton to escape. He testified that he saw Culliton shoot Sargent. He admitted crouching near the headlights of the station wagon, explaining that he wanted to see if they were burning as he had had a previous wiring problem with the car. Although he tried to leave in the station wagon, he could not start it. The police confirmed that the car was not operable.

A former girl friend of Culliton, who expressed dislike for the defendant, told the jury that a few days following the event, Gervais admitted to her that he had shot Sargent, but in self-defense.

No eye-witness, except the defendant, testified to the effect that Culliton was the person who fired the gun, but there was some testimony that Culliton was seen both on the evening of the incident and prior thereto with a gun similar to the weapon used in this assault.

Resolving the conflicts and inconsistencies in the testimony, whether in one witness or among the witnesses, as they had a right to do, ² the jurors, in viewing the evidence in all its aspects, were convinced to a unanimity beyond a reasonable doubt that the defendant was guilty of the crime of assault with intent to kill while armed with a dangerous weapon as charged.

I ADMISSION OF CONVICTION OF CRIME PENDING ON APPEAL.

The defendant claims that, with the conflict that existed in the evidence, the jury would not have found him guilty, if the Justice below had not permitted evidence of a recent conviction of assault of a high and aggravated nature to be given to the jury over his objections. Recognizing that, pursuant to 16 M.R.S.A., § 56, ³ a conviction of the crime of assault of a high and aggravated nature, a felony, was admissible to affect the defendant's credibility as a witness, nevertheless, the defendant asserts that, where that conviction was not a final judgment since it was then on appeal to the Law Court, its disclosure to the jury was without the sanction of the statute and prejudicial error requiring a reversal. We disagree.

The defendant at trial offered himself as a witness in his behalf. By so doing, he placed his general character for truth and veracity on the line and must needs be prepared to meet any proper evidence of prior convictions of any of the crimes specified in 16 M.R.S.A., § 56. These prior convictions are then matters properly in issue for impeachment purposes. See, State v. Carson, 1876, 66 Me. 116; State v. Watson, 1876, 65 Me. 74. Conviction of crime for the purpose of affecting the credibility of a defendant who has offered himself as a witness need not necessarily be proved by the record alone; it may be elicited in cross-examination of the accused. State v. Knowles, 1904, 98 Me. 429, 57 A. 588. And the prosecution is not bound by the witness's answer, if it be in the negative or less than the whole truth. See, State v. Toppi, 1971, Me., 275 A.2d 805.

The defendant obviously believed that his prior convictions of crime would have less impact on the jury if he himself volunteered the information in his direct examination. Defense counsel implemented such trial tactic by proceeding with the following examination of the accused.

'Q. Let me ask you Mr. Gervais, whether or not you have been in trouble with the law before?

'A. Yes, I have.

'Q. Did you get involved in an incident in Lewiston a few years back, on a conviction basis I am now talking about, where you were charged and convicted of breaking, entering and larceny?

'A. Yes, I was.

'Q. And that was involving a high school situation?

'A. Me and another kid broke into a high school.

'Q. And have you also been subsequently in trouble on one other occasion involved with a store of some kind in which you left the store without paying for an item?

'A. Yes.

'Q. And is that the extent of your involvement with the law? And this case here pending against you? And this other occasion, this breaking, entering which occurred when you were nineteen, is that right?

'A. Yes.

'Q. And you are now twenty-four?

'A. Almost twenty-four, next month.'

We believe that this meticulous examination of the defendant by his attorney was for the very purpose of minimizing the effect of his prior convictions on his credibility; undoubtedly, counsel felt that Gervais' version of the incident, his denial of the shooting and his accusation of Culliton as being the guilty party would be more acceptable to the jury, if they could conclude that Gervais had grown up from a 19 year old prankster to a law abiding citizen of twenty-four.

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