State v. Millett

• Decision Date: 19 October 1978
• Citation: 392 A.2d 521
• Parties: STATE of Maine v. Bruce MILLETT.
• Court: Maine Supreme Court

Page 521

392 A.2d 521

STATE of Maine v. Bruce MILLETT.

Supreme Judicial Court of Maine.

Oct. 19, 1978.

Henry N. Berry, III, Dist. Atty., Peter G. Ballou, Deputy Dist. Atty., Portland, Scott McGill, Law Student (orally), Stephen Devine, Law Student (orally), for plaintiff.

Lawrence J. Zuckerman (orally), Portland, for defendant.

Before POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ., and DUFRESNE, A. R. J.

DUFRESNE, Active Retired Justice. ¹

On April 6, 1976 the Grand Jury in and for the County of Cumberland in an indictment containing two counts charged the defendant, Bruce Millett, with having in his possession on two separate occasions on April 5, 1976 a firearm capable of being concealed, to wit, a handgun, in violation of 15 M.R.S.A., § 393, which prohibited such possession in the case of a person convicted of a felony during the period of five years next immediately following his discharge or release from prison or termination of probation. One Timothy James was simultaneously indicted for armed assault on Jessie J. Osborne in violation of 17 M.R.S.A., § 201-A. On motion of the State, the two indictments were consolidated for trial pursuant to Rule 13, M.R.Crim.P. over Millett's objection. The jury acquitted Millett upon the later episode as charged in the second count of the indictment against him, but brought in guilty verdicts in connection with the other accusations. Millett appeals from the judgment of conviction against him alleging as error, (1) the insufficiency of the evidence as a whole to support a conviction for violation of 15 M.R.S.A., § 393 and (2) the insufficiency of the evidence in the following particulars, (a) the State failed to prove that the instrument he possessed was in fact a firearm within the meaning of 15 M.R.S.A., § 393, or (b) the evidence did not affirmatively show that the gun was in operable condition, i. e. capable of firing a projectile, at the time he is accused of having possession of such an item. As a third point of appeal, the defendant claims that the Justice below committed reversible error in granting the State's motion for consolidation of his trial with that of Timothy James.

We deny the appeal.

1. Insufficiency of the evidence

This ground of appeal was properly preserved for appellate review, since the defendant did move, within ten days after verdict, for a new trial or in the alternative for a judgment of acquittal pursuant to Rules 33 and 29(b), M.R.Crim.P. See State v. Brewer, Me., 325 A.2d 26, 27 (1974). As stated in State v. O'Clair, Me., 292 A.2d 186, 196 (1972):

"Motions for acquittal and for a new trial based upon the insufficiency of the evidence to support the verdict of guilt present like questions and accomplish precisely the same result. They are conceptually and factually interchangeable."

Generally speaking, the question on appeal raised by a motion for new trial or for judgment of acquittal is whether, in view of all the evidence in the case, the jury was warranted in believing beyond a reasonable doubt that the accused was guilty of the crime charged against him. State v. O'Clair, supra, at page 196; State v. Goldman, Me., 281 A.2d 8, 12 (1971); State v. Wright, 128 Me. 404, 148 A. 141 (1929). Stated otherwise, the issue is whether, in view of all the evidence in the case, there was legally sufficient evidence to support the guilty verdict. State v. Burnham, Me., 350 A.2d 577, 582 (1976); State v. Westphal, Me., 349 A.2d 168, 169 (1975).

Appellate review of the sufficiency of the evidence must be made, however, in the light of the rule that issues of credibility of witnesses are the exclusive prerogative of the jury to resolve. State v. Brewer, supra, at page 28; State v. O'Clair, supra, at page 196; State v. Trask, Me., 223 A.2d 823, 824 (1966).

A review of the evidence which the jury could and did accept lends support to the following facts. On April 5, 1976 Jessie Osborne was at work in Portland at a car wash establishment where he was buffing cars. During the early part of the afternoon, Bruce Millett, in the company of the codefendant James, entered the car wash plant and stood leaning against the wall a short distance away, while James accosted Osborne in a belligerent manner. Millett was carrying a pistol the brown colored handle of which with trigger hammer was protruding from his belt in plain view of Osborne. Benito Conti, the owner of the car wash site, immediately intervened, asked the two gentlemen to leave, which they did, and thus broke up a potential confrontation.

At about seven o'clock in the evening, Osborne and Conti, with two young girls who had worked that afternoon at the car wash location, were preparing to leave in Conti's car, when James, who had stationed his van in the park on the other side of the street from the establishment, voiced threatening remarks at Osborne, brandished a shotgun and fired it in his direction, causing some leaves and dirt to fly in the air. Osborne and the girls jumped in Conti's car to hide and avoid being hit by any possible additional shotgun blast, while Conti walked over to talk to James and Millett. Mr. Conti's efforts proved successful and the van left the area.

The evidence presented a factual question upon which the jury was warranted to find guilt beyond a reasonable doubt.

2. Real firearm in operable condition

The defendant contends, however, that, here, the jury was not warranted Under the law applicable to the facts of the case to find guilt beyond a reasonable doubt on the ground that the evidence was insufficient to support proof beyond a reasonable doubt that the instrument possessed by Millett on the afternoon of April 5, 1976 was a real firearm capable of firing a projectile within the meaning of 15 M.R.S.A., § 393. See State v. Arsenault, 152 Me. 121, 124 A.2d 741 (1956).

The statute under which the defendant was convicted (15 M.R.S.A., § 393) ² then provided "It shall be unlawful for any person who has been convicted of a felony under the laws of the United States or of the State of Maine, or of any other state, to have in his possession any pistol, revolver or any other firearm capable of being concealed upon the person until the expiration of 5 years from the date of his discharge or release from prison or termination of probation.

Anyone violating any of the provisions of this chapter shall be guilty of a felony, and upon conviction thereof, shall be punished . . . ."

The charging document in pertinent part reads as follows:

"THE GRAND JURY CHARGES:

COUNT I

That on or about the Fifth day of April, 1976, in the City of Portland, County of Cumberland and State of Maine, the above named defendant BRUCE MILLETT did have in his possession a firearm capable of being concealed, to wit: a handgun, the said defendant having been discharged from a Maine State Prison sentence . . . ."

The defendant contends that 15 M.R.S.A., § 393 does not apply to possession by a felon within the stated period of time of an imitation or toy gun and that from the evidence it is as consistent as otherwise that the so-called pistol about which Osborne testified was not a real firearm. We disagree.

We note that the legislation regulating the possession of firearms by a felon did not, prior to the enactment of the code, define the term "firearm" except as it involved its concealability, the statute (15 M.R.S.A., § 391), providing, as it did, that

"the following words and phrases when used in this chapter (15) are defined as follows:

'Pistol,' 'revolver' and 'firearm' mean a weapon capable of being concealed upon the person and shall include all firearms having a barrel of less than 12 inches in length."

We are aware that the Legislature by Public Laws 1971, chapter 539, section 21, enacted the following definition of a firearm (17 M.R.S.A., § 4001(2)):

"2. Firearm. 'Firearm' shall include any pistol, revolver, rifle, shotgun, machinegun, automatic and semiautomatic rifle or other firearm as the term is commonly used, or any gun, device or instrument in the nature of a weapon from which may be fired or projected any solid projectile or slug, pellet, missile or bullet or any gas, vapor or other nocuous thing by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances; Or any other instrument that has the appearance of a firearm even though not capable of discharging a projectile." (Emphasis supplied)

This definitional provision was enacted as an integral part of the Legislature's comprehensive scheme to enhance the punishment for certain crimes when committed while armed with a firearm. But the introductory clause of section 4001 expressly limits the application of the reference definition of "firearm," in that it states

"(t)he following words, terms and phrases when used in this Title (meaning Title 17) and in Title 34 shall have the meaning ascribed to them in this section,"

thus lending support to the claim that the old maxim expressio unius est exclusio alterius is controlling and prevents the applicability of this belated definition to the term "firearm" as used in Title 15, Section 393.

But, in line with what this Court said in City of Portland v. New England Tel. & Tel. Co., 103 Me. 240, 249, 68 A. 1040, 1043 (1907)

"Whether the expression of one thing is to operate as the exclusion of another, is ordinarily a question of intention, to be gathered from an examination of all parts of a statute by the aid of the usual rules of interpretation,"

it might be argued that the overall motivation of our Legislators in enacting section 4001 of title 17 in 1971 was to provide a definitional standard for all statutes in pari materia including 15 M.R.S.A., § 393, even though the introductory clause omitted any reference to the latter statute in stating the reach of the amendatory act. Indeed, legislation providing for increased penalties in the case of recidivism on the part of felons (15 M.R.S.A., § 1742)...