State v. Heald

• Decision Date: 03 January 1978
• Citation: 382 A.2d 290
• Parties: STATE of Maine v. Augustus F. HEALD, Jr.
• Court: Maine Supreme Court

Page 290

382 A.2d 290

STATE of Maine v. Augustus F. HEALD, Jr.

Supreme Judicial Court of Maine.

Jan. 3, 1978.

Robert Raymond (orally), Vernon I. Arey, Asst. Attys. Gen., Augusta, for plaintiff.

Marshall A. Stern (orally), Vafiades, Brountas & Kominsky by Eugene C. Coughlin, Bangor, for defendant.

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

DUFRESNE, Active Retired Justice. ¹

Tried on an indictment charging him with the offense of possession of a firearm by a felon in violation of 15 M.R.S.A., § 393, ² the defendant, Augustus F. Heald, Jr., was found guilty as charged by jury verdict in the Superior Court, Piscataquis County, on November 1, 1973. The State then moved for immediate trial of the defendant as a person previously convicted and sentenced to the Maine State Prison pursuant to 15 M.R.S.A., § 1742 ³ under a separate indictment found by the Piscataquis County grand jury at the same time as the first mentioned indictment was rendered. On the same day, November 1, 1973, the defendant was arraigned on the second indictment and a new jury was impaneled. On November 2, 1973, this second jury found the defendant in violation of 15 M.R.S.A., § 1742, commonly known as the habitual offender statute, and the presiding Justice, as provided by section 1742, sentenced the defendant on the possession-of-a-firearm-by-a-felon conviction to a term in the Maine State Prison of not less than 10 years and not more than 30 years. The defendant appeals. We deny his appeal.

The record supports the following narrative: On June 17, 1965 the defendant was convicted of manslaughter in Waldo County Superior Court and sentenced to the Maine State Prison. Though initially denied on July 28, 1967 (see State v. Heald, Me., 232 A.2d 79), Heald's appeal from this conviction was later reinstated and was still pending on February 16, 1970, the date he is accused of violating 15 M.R.S.A., § 393, the unlawful-possession-of-a-firearm-by-a-felon statute. On that date the defendant, who had been released from State Prison pending resolution of his reinstated appeal, was arrested in Guilford, Maine, by Piscataquis County Deputy Sheriff Paul Ruksznis in the course of a criminal investigation. When he was about to handcuff the defendant, the deputy noticed the butt of a gun protruding from the pocket of the jacket Heald was wearing. The officer removed the gun which later proved to be a small .32 caliber revolver.

At trial the prior conviction of manslaughter was used as evidence to establish both the defendant's status as a felon at the time the handgun was seized from his person and his status as an habitual offender once convicted of the current offense.

Conviction of a felony within the scope of 15 M.R.S.A., § 393

The defendant, prior to trial, filed a motion to dismiss the indictment charging him with the crime of possession of a firearm by a felon pursuant to Rule 12(b)(1), M.R.Crim.P., ⁴ on the ground that the manslaughter conviction upon which the State relied to establish the defendant's status as a felon on February 16, 1970 was then pending on appeal to the Law Court. The trial Court's denial of the motion was proper.

The issue is whether the Legislature used the expression "convicted of a felony" to mean an initial unreversed conviction at the trial level, whether appealed or not, or only such convictions as have become finalized either through the appeal process or for failure of a defendant to exercise the right of appeal.

It is a well recognized principle of statutory construction that penal statutes are to be construed strictly. State v. Granville, Me., 336 A.2d 861 (1975); Duncan v. State, 158 Me. 265, 183 A.2d 209 (1962), cert. den., 371 U.S. 867, 83 S.Ct. 129, 9 L.Ed.2d 104.

This rule, however, is subject to the overriding controlling principle that, even in the interpretation of penal statutes, the standard used to determine their meaning must not be so restrictive as to defeat the obvious will of the Legislature; rather, the legislative language will be construed to have such meaning as shall appear most reasonable and best suited to accomplish the objects of the legislation. State v. S. S. Kresge, Inc., Me., 364 A.2d 868, 871 (1976); Davis v. State, Me., 306 A.2d 127 (1973).

Furthermore, legislative intent will be ascertained by giving the statutory language that reasonable construction which persons of "common intelligence would readily ascribe" thereto. State v. Shaw, Me., 343 A.2d 210, 213 (1975).

Words of a penal statute must be given their common and popular sense, unless the act discloses a legislative intent otherwise. State v. Blaisdell, 118 Me. 13, 15, 105 A. 359 (1919); State v. Cumberland Club,112 Me. 196, 200, 91 A. 911 (1914).

Giving legislative terms such as in the instant case convicted of a felony the more extended of two meanings as the general public would understand it (conviction at the trial level), instead of imputing to them the more sophisticated and narrow technical reference to a conviction finalized in an appeal or by the failure of a defendant to take an appeal, is a proper approach to determining legislative intent. See State v. J. P. Bass Co., 104 Me. 288, 292, 71 A. 894, 20 L.R.A., N.S., 495 (1908); United States v Hartwell, 6 Wall. 385, 396, 18 L.Ed. 830 (1867).

This Court has recognized that the words "convicted" or "conviction" when they appear in a criminal statute may have different meanings depending upon the context of the particular statute in which they are used. State v. DeBery, 150 Me. 28, 30, 103 A.2d 523 (1954); Donnell v. Board of Registration, 128 Me. 523, 524-525, 149 A. 153 (1930).

In its common and popular sense, the term "convicted" signifies the finding of the jury that the defendant is guilty. We speak generally of convictions being reversed on appeal and commonly refer to individuals being convicted by juries of their peers. In Duncan, Petr. v. State of Maine, 158 Me. 265, 271, 183 A.2d 209, 213 (1962), this Court said that ordinarily the "conviction" is the verdict of guilty. See also State v. Morrill, 105 Me. 207, 73 A. 1091 (1909).

In State v. Dunn, Me., 370 A.2d 1099 (1977), this Court ruled that a prior conviction from which an appeal was pending may be shown to affect the credibility of a witness, since the intendment of 16 M.R.S.A., § 56 is that the word "convicted" must be given its normal meaning. In Dunn, we distinguished the Donnell and DeBery cases, where the Court construed the pertinent statutes to require a final conviction as to which nothing remained to be done except execution of the sentence. The Court in Donnell and DeBery ruled that such was the intent of the Legislature where serious economic rights such as the license to practice medicine and the license to operate motor vehicles were involved.

In the instant case, the Legislature provided against any serious economic consequences similar to those involved in Donnell and DeBery by excluding commissioned peace officers, guards and watchmen from the class of persons against whom the firearm-possession prohibition of section 393 would apply. See 15 M.R.S.A., § 392. If the Legislature had intended to exclude persons whose conviction had not become final, it seems that a parallel exception would have been enacted.

It would appear that the Legislature viewed firearms concealable on the person as tools of the trade in the criminal world. It must have considered their possession by persons found guilty of serious crimes as presenting a high potential of danger to the public generally and as enhancing to a high degree the probability that the convicted individual would continue his criminal activity. The Legislature could justifiably conclude there was need for gun control legislation in the case of convicted criminals the moment the person has been found guilty of a serious crime; to except from the operation of 15 M.R.S.A., § 393 felons whose judgment of conviction is pending on appeal would be inconsistent with the obvious legislative purpose of deterrence and rehabilitation which the broad language of the enactment indicates. See State v. Brown, 6 Or.App. 523, 488 P.2d 856 (1971).

The federal courts have reached a similar conclusion in their interpretation of 18 U.S.C.App. § 1202(a)(1). That statute forbids the interstate transportation of firearms by a felon. By reasoning that Congress intended the words of the statute to carry their normal meaning, the circuit courts have consistently held that the term "convicted" denotes the verdict of guilty at the trial level. United States v. Samson, 533 F.2d 721 (1st Cir. 1976); United States v. Wooten, 503 F.2d 65 (4th Cir. 1974). See also United States v. Liles, 432 F.2d 18 (9th Cir. 1970).

Sufficiency of firearm-possession indictment

In his motion to dismiss, the defendant further raised the point, that, even if the manslaughter conviction could serve as a basis for a prosecution under 15 M.R.S.A., § 393, the stated conviction was not alleged with sufficient particularity to make the indictment valid in law. ⁵

In State v. Mottram, 155 Me. 394, 156 A.2d 383 (1959), this Court was called upon to decide, whether the trial court acted properly in allowing an amendment to an indictment for possession of a firearm by a felon. What was said there, though in a somewhat different context, is, nevertheless, relevant here:

"The count of prior conviction must, by allegation, notify the respondent that he is charged with a previous conviction of a felony and sentenced thereon to a State Prison. In order to properly prepare his defense, he is entitled to that degree of strictness in description of the record that will inform him of the particular record to be used as evidence." 155 Me. at 402, 156 A.2d at 388.

Thus, the standard to be used in determining the sufficiency of an indictment in relation to its allegations concerning the previous conviction pursuant to 15 M.R.S.A., § 393 is, whether it contains sufficient...