State v. Gervais

• Decision Date: 06 December 1978
• Citation: 394 A.2d 1183
• Parties: STATE of Maine v. James P. GERVAIS.
• Court: Maine Supreme Court

Page 1183

394 A.2d 1183

STATE of Maine v. James P. GERVAIS.

Supreme Judicial Court of Maine.

Dec. 6, 1978.

Henry N. Berry, III, Dist. Atty., Peter G. Ballou, Deputy Dist. Atty., Portland, Robert Mullen, Law Student (orally), for plaintiff.

Dunlap, Wood & O'Brien by Gary C. Wood (orally), Portland, for defendant.

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

WERNICK, Justice.

A two count indictment returned on March 8, 1977 accused defendant James P. Gervais of having committed, on or about February 15, 1977, the crimes of Burglary in violation of 17-A M.R.S.A. § 401 (Class B) and Theft in violation of 17-A M.R.S.A. § 353 (Class C). The charges arose from a burglary perpetrated on February 15, 1977 at the home of Richard and Bonnie Anderson in Falmouth, Maine. Defendant was tried before a jury in the middle of February, 1978 and found guilty of each count of the indictment. Appealing from the judgments of conviction, defendant asserts as claims of reversible error, all adequately preserved at the trial level, that: (1) the evidence is inadequate to support the convictions; and (2) the presiding Justice was wrong in admitting as evidence: (a) various prior criminal convictions of defendant, (b) purportedly expert testimony regarding an allegedly well-known method of operation for committing burglary, and (c) various items of property found during the search of an automobile, claimed by defendant to be an unconstitutional search because the evidence presented at a pre-trial suppression hearing failed to show that the police had acted lawfully in making the initial stop of the automobile.

We deny the appeal.

At approximately 1:00 o'clock in the afternoon of February 15, 1977 defendant was a passenger in an automobile owned and being operated by Terrance Mihill. Mihill drove the automobile into the driveway of the Anderson home, went to the door of the house, knocked, waited for a short time and then quickly entered. He proceeded directly upstairs to Mrs. Anderson's bedroom, removed some valuables from the dresser and returned downstairs. Mihill had been observed by the Andersons' son, Graham, who was watching and listening from his own bedroom. As Mihill left the house, he again became visible to Graham Anderson who saw him first approach the car, pointing to a red bundle he was holding in his hand, and then engage in a brief conversation with defendant. Shortly thereafter, Mihill tossed the bundle through the car window. After some difficulty in getting the car started because of the cold and snowy weather conditions, Mihill drove away, with defendant still in the automobile.

Graham Anderson at once called the police. He furnished them the license number of the vehicle, and a description of the vehicle, of the color of its license plates, and of its operator. The police put an all-car bulletin on the air. Within a matter of minutes, Alfred Gamage, a police officer operating a cruiser, spotted the Mihill automobile proceeding in a direction opposite to him. He made a U-turn to follow and activated his blue lights. Very soon thereafter, the vehicle being pursued pulled off the road, as if there was "panic on the part of the operator", and came to a stop in an abandoned lot against a snowbank. Approximately at this time, another officer, Edmund Pelletier, arrived at the scene. Mihill and the defendant were ordered out of the automobile and placed under arrest. Searching the automobile, Officer Pelletier saw a red parka protruding from beneath the passenger seat of the automobile. He examined it, found it was rolled into a wad, and unrolling it, he saw that it contained a wallet, checkbook and some jewelry, all property of the Andersons.

Testifying on his own behalf, defendant claimed that he had in no way participated in Mihill's criminal activity. Defendant's story was that he had been drinking beer and was somewhat befuddled. He recalled that while he and Mihill were returning from an unsuccessful attempt to go horseback-riding in Gray, they became lost. The automobile began to run short of gas, so they stopped, twice, to ask for directions. At the second stop, the Anderson house, defendant remained in the car, relaxing with a beer and listening to music, while Mihill went to the house to ask for directions. According to defendant, Mihill must then have decided on the spur of the moment to commit a burglary. Defendant maintained that he knew nothing of a burglary until Mihill came out of the house holding a red bundle and shouting: "I pulled the score." Defendant claimed that the conversation he was seen to have with Mihill was really an argument between them arising because defendant refused to take, or touch, the bundle. Mihill then tossed the bundle into the automobile, and he started to drive towards town, with defendant remaining a passenger. Soon, they noticed a police car's blue lights flashing behind them. Defendant wrestled for control of the steering wheel. This caused the automobile to leave the road and stop against a snowbank. The ensuing jar made the red parka bundle slide towards the passenger side of the car.

1. The Sufficiency of the Evidence.

On the evidence, and according to the instructions of law given them by the presiding Justice, the jury could have found defendant guilty as charged only on the basis that he was Mihill's accomplice. Defendant's contention on appeal is that such a finding is not justified on the evidence under the definition of "accomplice" set forth in 17-A M.R.S.A. § 57(3):

"A person is an accomplice of another person in the commission of a crime if:

"A. With the intent of promoting or facilitating the commission of the crime, he solicits such other person to commit the crime, or aids or agrees to aid or attempts to aid such other person in planning or committing the crime."

The evidence, says defendant, shows Only that he was present at the scene of the crime, as a passenger in Mihill's automobile.

Defendant is correct that evidence showing a defendant's Mere presence at the scene of a crime is inadequate to prove him an accomplice in the commission of the crime. We disagree with defendant, however, that the evidence here shows nothing but mere presence.

The evidence established that defendant was Mihill's friend. Even though defendant may not have been shown to engage in any overt act of assistance, his presence as a friend could be taken as a circumstance suggesting encouragement to Mihill. Cf. State v. Mower, Me., 317 A.2d 807, 812 (1974). When the further circumstance is added that, as the evidence showed, defendant, though fully free to disengage himself from Mihill, continued to ride with him after defendant knew that he had committed a burglary, a rational basis is provided for a conclusion that during the entire time of defendant's presence at the scene of the crime, he was aiding and abetting Mihill in the commission of burglary. State v. Berube, 158 Me. 433, 185 A.2d 900 (1962). It tends to buttress this conclusion that defendant took the stand and sought to give the jury an exonerating version of what had happened. The verdict makes plain that the jury disbelieved defendant's story. The jury's finding that defendant did not tell the truth about what had happened could properly be taken as additional indication of his guilty participation.

The evidence was sufficient to support the convictions. ¹

2. Admissibility of Defendant's Prior Criminal Convictions.

Defendant contends that the presiding Justice erred in admitting evidence, for the purpose of impeaching defendant's credibility as a witness, that defendant had previously been convicted of certain crimes.

Defendant relies on State v. Roy, Me., 385 A.2d 795 (1978) in attacking the admission in evidence of his prior convictions of the crimes of shoplifting and breaking, entering and larceny. Defendant argues that Roy requires as a matter of law the exclusion, here, of these prior convictions because (1) the crimes involved so closely resemble the crime for which defendant was on trial that the jury would be likely to use the evidence improperly: to give it substantive effect as proving a behavioral tendency in conformity to which defendant had acted in the present instance; and (2) in crimes of shoplifting and breaking, entering and larceny have little relevance to veracity.

Defendant's reliance on Roy is misplaced. Roy does not hold that the slight relevance to veracity of the crime involved in a prior conviction and its close resemblance to the crime for which defendant is being tried are facts By themselves requiring In all cases that the prior conviction be excluded as evidence to impeach defendant's credibility. In Roy it also appeared that the prosecution had improperly probed into the factual details of the crime involved in the prior conviction and made the jury aware that the victim of the incest for which defendant had been previously convicted was approximately the same age as the victim of the crime of indecent liberties for which Roy was on trial.

The case at bar is plainly distinguishable. Here, there are no independently prejudicial circumstances. Moreover, we cannot say that the presiding Justice was guilty of abuse of discretion in concluding that in contrast to the crime of incest involved in Roy, the crimes of shoplifting and breaking, entering and larceny have more than a minimal bearing on general credibility. As we said in State v. Toppi, Me., 275 A.2d 805, 810 n. 5 (1971):

"(A)cts of deceit, fraud, cheating, or stealing, . . . are universally regarded as conduct which reflects adversely on . . . honesty and integrity."

See generally Field & Murray, Maine Evidence § 609.1.

As to the admission in evidence of defendant's prior conviction of the crime of assault with intent to kill, that crime is

"punishable by . . . imprisonment for one year or more under the law under which . . . (defendant) was convicted, . . .."

It was...