State v. Harding
| Citation | 392 A.2d 538 |
| Parties | STATE of Maine v. Dennis HARDING, Jr. |
| Decision Date | 20 October 1978 |
| Court | Maine Supreme Court |
Joseph M. Jabar, Dist. Atty., J. William Batten (orally), Robert J. Daviau, Asst. Dist. Attys., Augusta, for plaintiff.
J. Michael Talbot (orally), Philip S. Bird, Fairfield, for defendant.
Before POMEROY, WERNICK, ARCHIBALD, DELAHANTY and NICHOLS, JJ.
Dennis Harding, Jr., having been indicted, accorded a jury trial and convicted of Burglary (17-A M.R.S.A. § 401) and Theft (17-A M.R.S.A. § 353), now appeals from both convictions, which we deny.
Prior to trial appellant had filed motions for (1) "Change of Judge," and (2) change of venue. Underlying these motions were the allegations that (1) the justice assigned to preside was "biased" because the appellant "had previously appeared before (the justice) on at least two prior occasions" and (2) the "District Attorney's Office (because of prior criminal allegations) . . . may be biased and prejudiced." The denial of the motions is the first claim of error.
The appellant designated as the record on appeal, "the complete record of all the proceedings and evidence within the action." Rule 39(a), M.R.Crim.P. There is no suggestion of non-compliance and we assume, therefore, that the entire record is before us.
The record is silent on the first motion beyond the signed notation thereon of its denial. On the second motion the following appears: "Nov. 1, 1977 Impartial jury selected, motion is denied (s/ justice presiding)."
Since we have no record of the hearing on these motions, either by transcript or by reconstruction, appellate review of these obviously discretionary rulings is entirely inappropriate. State v. Carney, Me., 390 A.2d 521 (1978); See also Tibbetts v. Carpenter, Me., 391 A.2d 309 (1978).
Appellants moved for a continuance premised on the novel argument that, because other criminal cases were pending against him, defense counsel could not "adequately advise, represent or counsel the Defendant . . . in the pending case without a full disclosure . . . of all . . . information that is available to the State . . . in connection with the other alleged violations by the Defendant." This motion was denied.
In his brief appellant argues that the "complexity and multitude" of the other pending matters required granting a continuance. Citing State v. Wardwell, 158 Me. 307, 183 A.2d 896 (1962), he urges us to find that the denial of the motion for a continuance was an abuse of judicial discretion.
The offenses here in issue were committed on June 26, 1977, the indictment returned September 16, 1977, counsel being appointed on September 26th and trial was had on November 1 and 2, 1977. The facts, as will be revealed, were not complicated. We see no occasion to depart from the ultimate holding in Wardwell, namely:
The granting of a continuance in a criminal case based upon want of time to prepare a defense rests in the sound discretion of the presiding justice.
158 Me. at 310, 183 A.2d at 898-899.
How knowledge of other pending criminal charges (assuming there were such since we have nothing in the record to establish the truth of the allegation) would assist in the defense of the charges being tried is still as mysterious to us as it must have been to the justice below.
There was no error.
Appellant's motion for judgment of acquittal was denied, which ruling is also claimed to have been erroneous.
The jury could readily have found the following facts.
A dwelling owned by Mr. and Mrs. Virgil W. Tyler was entered and a "C.B. transphonic radio" was taken therefrom. Entry was attained by the appellant when, having discovered that the front door was locked and after no one had responded to knocking on the door, "(he) pushed the window in and reached in and unlocked the door." Subsequent to this entry Dwight Gould, Harding's cousin, removed the radio, being advised by Harding:
The premises were then vacated by the appellant, Gould and a third companion, Ron Levesque. The three immediately drove away in Harding's car. Levesque next gave appellant $20.00 for the radio which was ultimately delivered to one Stephen Giroux in Fairfield, who testified, "They asked me if I knew anybody that wanted one (i. e., a C.B. radio), and I said that when I went to work I would ask."
The appellant did not testify and Ron Levesque refused to do so, stating: "I would like to plead the Fifth Amendment."
Although there was testimony that the initial purpose in going to the Tyler home was to call on a young lady, the jury could rationally infer that, on discovering no one at home and the door locked, a burglarious entry for purposes of theft ensued.
There was no error in denying appellant's motion for judgment of acquittal since resolving issues generated by the facts falls within the exclusive province of the jury. State v. Blouin, Me., 384 A.2d 702, 706 (1978).
The final point of appeal arises from an instruction given pursuant to a question asked by the jury after it had deliberated approximately one hour, namely: "Does the Defendant's intent to commit the theft have to be established before or after the entrance into the dwelling?"
In his charge in chief, the justice had defined the element of burglary, 1 noting that "we're not worried about the 'remaining on the premises' " aspect. The justice explained at some length the legal concepts of "entry," "dwelling house," "license or privilege to enter," and "was there an intent to commit a crime at the time he entered the premises." An instruction then ensued explanatory of specific criminal intent. However, although the jury could have so inferred, it was not told in specific language that the intent to commit theft must exist at the time of the unlawful entry.
There were no objections to the charge as given, nor were any requested instructions denied.
In response to the jury's question, the justice said:
So that, as I have explained to you, the elements, if he enters the dwelling place knowing that he is not privileged to do so, with intent now that specifies that he has the intent when he enters . . . .
The foregoing statement was correct. State v. Field, Me., 379 A.2d 393, 395 (1977).
However, the justice continued as follows:
But you do have this different situation that can exist as far as this same statute is concerned. If a person surreptitiously remains, once having...
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United States v. Bernel-Aveja
...one could surely believe he subsequently formed the intent necessary to be guilty of the crime of burglary").129 See State v. Harding , 392 A.2d 538, 541 n.2 (Me. 1978) (concluding, in a case involving only unlawful entry, that there was no obvious error in an instruction to the jury that "......
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State v. Stinson
...legal representation at trial in a given case rests entirely within the sound discretion of the presiding trial justice. State v. Harding, Me., 392 A.2d 538, 540 (1978); State v. Curtis, Me., 295 A.2d 252, 254 (1972); State v. Wardwell, 158 Me. 307, 310, 183 A.2d 896, 898-99 (1962). The bur......
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State v. S. G.
...v. Mower, Me., 407 A.2d 729 (1979); State v. Lindsey, Me., 400 A.2d 368 (1979); State v. Boyer, Me., 392 A.2d 41 (1978); State v. Harding, Me., 392 A.2d 538 (1978); State v. Williams, Me., 387 A.2d 27 (1978). But see State v. Roper, Me., 418 A.2d 1093 In each of those cases the State presen......
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State v. Cardilli
...State v. Harding , we defined "surreptitiously remaining" as "stealthily, secretly[,] or clandestinely" remaining on the premises. 392 A.2d 538, 542 (Me. 1978). Applying this definition, it is clear that even if Cardilli held a belief that Muse surreptitiously remained in the Cardilli home ......