State v. Morton

• Decision Date: 01 May 1972
• Citation: 290 A.2d 371
• Parties: STATE of Maine v. Thomas MORTON.
• Court: Maine Supreme Court

Page 371

290 A.2d 371

STATE of Maine v. Thomas MORTON.

Supreme Judicial Court of Maine.

May 1, 1972.

Foahd J. Saliem, County Atty., Augusta, for plaintiff.

Charles E. Moreshead, Augusta, for defendant.

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

WERNICK, Justice.

Defendant, in a trial by jury (in the Superior Court, Kennebec County), was found guilty of the crime of uttering and publishing as true, and with intent to defraud, an endorsement of a bank check which defendant knew to be a false, forged and counterfeit endorsement (17 M.R.S.A. § 1501). After a sentence of two and one-half to seven years in the State Prison was imposed, judgment of conviction was duly entered. Defendant has appealed to this Court from the judgment of conviction. $The evidence discloses that defendant was identified at trial as the person who had participated in a transaction involving a purported purchase of a used automobile. Defendant had produced from within his own possession the bank check above mentioned in which the name 'Kenneth Hustus' appeared as the designation of the payee of the check. In the presence of the seller, defendant signed the name 'Kenneth Hustus' as an endorsement on the check and then delivered the check to the seller in part payment of the purchase price of the used automobile.

Defendant's first ground of appeal claims legal insufficiency of the evidence by which defendant was identified as the person who had committed the crime. ¹

In the manner in which the claim has herein been developed for appellate review, it must be denied.

At the conclusion of the evidence presented by the State, defendant, pursuant to Rule 29(a) M.R.Crim.P., had made a motion for judgment of acquittal by which he had raised the issue of the legal insufficiency of the identification evidence adduced by the State. The presiding Justice denied the motion. Defendant did not rest but thereupon proceeded with his own case and offered evidence which, in part, undertook to show that defendant had been elsewhere at the time and was, therefore, wrongly identified as a participant in the used car transaction.

Defendant failed to make a motion for judgment of acquittal at the close of all the evidence or subsequently to the jury's return of a verdict of guilty (either before or after the discharge of the jury)-all as authorized under Rule 29 M.R.Crim.P. Furthermore, there was no motion for a new trial under Rule 33 M.R.Crim.P. which would be 'deemed', under Rule 29(b) M.R.Crim.P., 'to include a motion for judgment of acquittal as an alternative.'

In relation to the issue of the legal adequacy of the evidence of identification defendant has assigned only a single point upon which he relies in this appeal. It reads as follows:

'The Court erred in not allowing Appellant's Motion For Acquittal on the grounds that proper identification was not made of the Respondent by the State's witnesses.' (emphasis supplied)

We are obliged to construe this point of appeal as a claim of error confined to the import of the evidence as it existed at the close of the State's case rather than as directing attention to the totality of the evidece. Since defendant had made only one motion for judgment of acquittal and it had been forthcoming at the close of the State's case, the explicit reference to 'Appellant's Motion for Acquittal' must be interpreted to signify such error by the trial Court as inhered in the decision of that motion which functioned only to contest the sufficiency of the evidence offered by the State's case in chief. This view is further confirmed by defendant's express mention in the designated point of appeal of the insufficiency of the identification evidence which had come from the 'State's witnesses'.

It is elementary that the issue raised by a motion for judgment of acquittal which is made at the close of the State's case in chief-precisely because it involves assessment only of the evidentiary situation then existing rather than of the totality of the evidence-is waived once the defendant goes forward with his own case and presents evidence. State v. Short-well, 126 Me. 484, 139 A. 677 (1928); State v. Johnson, 145 Me. 30, 71 A.2d 316 (1950); State v. Rainey, 149 Me. 92, 99 A.2d 78 (1953); and State v. Lizotte, Me., 256 A.2d 439 (1969).

In the present situation, therefore, since the one designated point of appeal which relates to an alleged insufficiency in the evidence specifies alleged error by the presiding Justice only in the evaluation of the legal adequacy of the evidence as it existed at the close of the State's case, and since defendant had waived the right to make such claim of error by choosing to introduce evidence at the trial in his own behalf, this ground of appeal must be denied. ²

A second point raised on appeal concerns alleged error in the refusal of the presiding Justice to give the following requested instructions:

'1. No class of testimony is more uncertain and less to be relied upon than that of identify.

'2. Evidence of identification of the defendant in the absence of prior familiarity with him is merely the expression of an opinion by a witness and is to be regarded by the Jury in the same light as any other opinion that may be expressed by a witness.

'3. If the Jury finds that the witness was honestly mistaken in his identification of the Defendant, then a reasonable doubt is created as to the guilt of the Defendant and he must be acquited.'

The presiding Justice declined to give the requested instructions on the ground that in his charge he had already sufficiently covered the subject-matter in his own words.

Our reading of the charge of the presiding Justice confirms his view, especially with regard to requested instructions (1) and (3) above.

As to requested instruction (2) it may be that the presiding Justice did not use language tending directly to connote the concept of 'opinion' evidence. The requested instruction, however, is itself unclear and incomplete in that it fails to explain the meaning of 'opinion' evidence in contradistinction to other kinds of testimony and provides no criterion for a different assessment by the jury of 'opinion' testimony as contrasted with 'non-opinion' testimony. Because of such inaccuracy and incompleteness in the request itself, the presiding Justice was without obligation to give it in the form in which defendant had presented it. In any event, however, we find that the substance of what defendant could legitimately have been requesting was adequately stated to the jury by the presiding Justice's own language. ³

Defendant's third an last point of appeal consists of a contention that one instruction in the charge was so prejudicial as to deprive defendant of a fair trial. On this basis, even though defendant had omitted to make timely objection at trial to preserve the issue for review by appeal in accordance with sound trial and appellate practice, the instruction remains subject to appellate scrutiny under the doctrine of State v. Smith, 140 Me. 255, 37 A.2d 246 (1944); State v. Wright, 128 Me. 404, 148 A. 141 (1929); and Rule 52(b) M.R.Crim.P.

The instruction was:

'(W)e are not really here to determine or decide . . . and if the truth be known, we really aren't interested in...