State v. Lunney

• Decision Date: 24 April 1979
• Citation: 400 A.2d 759
• Parties: STATE of Maine v. Steven LUNNEY.
• Court: Maine Supreme Court

Page 759

400 A.2d 759

STATE of Maine v. Steven LUNNEY.

Supreme Judicial Court of Maine.

April 24, 1979.

John E. Welch, Dist. Atty., Richard L. Rhoda, Asst. Dist. Atty. (orally), Houlton, for plaintiff.

Jordan & Goodridge by Donald H. Goodridge, (orally) Houlton, for defendant.

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

GODFREY, Justice.

The appellant Steven Lunney was indicted on November 3, 1976, for the crimes of tampering with a witness ¹ and perjury. ² At a jury-waived trial in Superior Court, he was convicted of both charges and sentenced to imprisonment for two and one-half years. The appellant seeks reversal of both convictions, contending, among other things, that the indictments were invalid and that the evidence was insufficient to sustain either conviction. We sustain the appeal, holding the indictment for tampering insufficient to sustain the conviction for tampering and holding the evidence insufficient to support the conviction for perjury.

The record reveals the following facts: On September 29, 1976, appellant testified as a defense witness in the trial of State of Maine v. Frederick Tompkins, a prosecution for assault and battery and threatening communication. Appellant's testimony in the Tompkins trial included statements that on the evening of September 9, 1975, he had gone to "Bear Hill" in Easton with several other persons, including Frederick Tompkins, Steven Mills, Raymond Holmes, and Tony Robbins. He testified that the people on Bear Hill talked with one another and drank a few beers and that Tompkins and Steven Mills engaged in normal conversation.

In the evening after appellant gave his testimony, Tony Robbins received a subpoena to testify on behalf of Frederick Tompkins at the same trial. The next morning, Tony Robbins rode to court with the appellant and Raymond Holmes. Lunney related to Robbins what he had said as a witness the day before, and Robbins concluded that he should testify to the same effect. Accordingly, upon examination as a defense witness, Robbins at first gave testimony similar to that given the day before by appellant, including a statement that he had been present himself at Bear Hill.

Later that day, on rebuttal examination by the State, Robbins retracted his earlier testimony and said that although he had been riding in Steven Mills's car, which was one of the two cars that started for Bear Hill on the evening in question, he had been left off in town and had not accompanied the group to Bear Hill. In response to leading questions by the prosecutor, Robbins said that appellant had "told him" what to say. However, his entire testimony indicates that he had not given his false testimony as a result of any request by appellant or any promise or threat by appellant.

The appellant was indicted for both perjury and tampering with a witness. At appellant's trial, on October 19, 1977, Walter Osgood and Wilfred Tompkins testified that on the evening of September 9, 1975, they saw Tony Robbins in Steve Mills's car, that Robbins left the car and joined them, and that they did not go to Bear Hill with him that evening. Steven Mills then testified that he was "the same Steven Mills who was involved in an incident with Frederick Tompkins that took place on September 9, 1975 in Easton." Mills stated that Tony Robbins had left with Walter Osgood and Wilfred Tompkins before Mills himself accompanied Frederick Tompkins, Steven Lunney, Raymond Holmes, and others to Bear Hill, and that at no time did he see Robbins at Bear Hill.

Tony Robbins then testified that he was a witness in the trial of Frederick Tompkins "on two counts of high and aggravated assault and battery, one count of threatening communication, back on September 30, 1976." Robbins identified the appellant as the person who had testified in the Frederick Tompkins trial and who had discussed Robbins's testimony with him in the car on the way to the trial. Robbins stated that he had been with Steven Mills early in the evening of September 9, 1975, but had left Mills and joined Walter Osgood and Wilfred Tompkins before Mills and Frederick Tompkins went to Bear Hill. Robbins said that at no time during the evening had he gone to Bear Hill and that he knew nothing about what had occurred on the hill until appellant Lunney described his own testimony a year later in the car on the way to Frederick Tompkins's trial. Again, Robbins replied in the affirmative to the prosecutor's question whether appellant had told him to testify to the same story Lunney himself had presented. Again, his later responses made it unclear what he meant by that reply.

The complete record and transcript of the Frederick Tompkins trial were not introduced in evidence. Only the testimony of the defense witnesses, namely, Robbins, Holmes, and the appellant, was presented to the Superior Court in the present case.

I. Indictment for Tampering with a Witness

Appellant Lunney was indicted for "tampering with a witness" under 17-A M.R.S.A. § 454, which provided at the time, in pertinent part, as follows:

"1. A person is guilty of tampering with witness or informant if, believing that an official proceeding as defined in section 451, subsection 5, paragraph A, or an official criminal investigation, is pending or will be instituted:

A. He attempts to induce or otherwise cause a witness or informant

(1) to testify or inform falsely . . . ."

The indictment of appellant for tampering charged only as follows:

"That on or about September 30, 1976, in Houlton, Aroostook County, Maine, Steven Lunney did, believing that an official proceeding was in progress, to wit, the criminal trial of the State of Maine versus Fred Tompkins before the Superior Court of the County of Aroostook, cause a witness to testify falsely."

The appellant moved seasonably to dismiss the tampering indictment on several grounds, among them that it did not state the name of the witness or describe in what respect the witness was alleged to have testified falsely. The record does not disclose what action the trial court took on the motion. Because the insufficiency of an indictment to charge a criminal offense is regarded by this Court as a jurisdictional defect, we must consider the appellant's renewed challenge to the indictment on this appeal. State v. Porter, Me., 384 A.2d 429, 433 (1978). Except by innuendo, the indictment does not even aver that the Tompkins trial was the official proceeding in which defendant caused the witness to testify. Also, the indictment charges defendant with "causing," rather than attempting to cause, the witness to testify falsely. As the statute provided "on or about September 30, 1976," the crime of tampering was defined only as a crime of attempt, a crime requiring specific intent. More seriously, the indictment in question does not contain sufficient allegations of the essential facts to inform the appellant adequately of what acts he had committed that constituted the offense charged. For the reasons we set forth in State v. Charette, 159 Me. 124, 126, 188 A.2d 898, 899-900 (1963), one charged with crime has the constitutional right to demand that the charge be set forth with such particularity as will indicate with a reasonable degree of precision the offense with which he is charged. The indictment of appellant neither identifies the witness whom the appellant is charged with causing to testify falsely nor describes in what respect he testified falsely. A defendant cannot defend adequately against a charge of causing false testimony to be given by a witness without knowing in what respect the witness is alleged to have testified falsely. The indictment in this case should have identified the witness and alleged in what respect he testified falsely in the Tompkins trial.

Appellant's judgment of conviction for tampering with a witness must be vacated for insufficiency of the indictment.

II. Sufficiency of the Evidence

At the close of the state's case, the defendant moved for a "directed verdict" of acquittal on the ground that the state had produced insufficient evidence to support convictions for tampering with a witness and for perjury. The defendant renews this contention on appeal. Because we have determined that the tampering indictment is defective and requires dismissal, we do not address the sufficiency of the evidence to support the tampering conviction. With respect to the perjury conviction, we find that the state's evidence was inadequate on the crucial element of materiality and sustain the defendant's appeal from that conviction. It becomes unnecessary for us to address the sufficiency of the evidence on the other...