State v. Toppi

• Decision Date: 02 April 1971
• Citation: 275 A.2d 805
• Court: Maine Supreme Court
• Parties: STATE of Maine v. Frank J. TOPPI, Philip B. Shaw, Dennis J. Cellamare.

Page 805

275 A.2d 805

STATE of Maine v. Frank J. TOPPI, Philip B. Shaw, Dennis J. Cellamare.

Supreme Judicial Court of Maine.

April 2, 1971.

Peter T. Dawson, Asst. Atty. Gen., Augusta, for plaintiff.

Bruce E. Leddy, Portland, for Frank J. Toppi.

William E. McKinley, Portland, for Philip B. Shaw.

Frederick T. McGonagle, Gorham, for Dennis J. Cellamare.

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

POMEROY, Justice.

These three appeals followed the entry of a judgment of guilty after a juty trial had on an indictment in which the three defendants were charged with the crime of conspiracy. 17 M.R.S.A. 951.

All three urge as Points of Appeal:

1. The Court erred in refusing to dismiss the indictment. ¹

2. The Court erred in denying the Defendant's pretrial request to be furnished with the criminal record of John H. Wichelms, unindicted co-conspirator.

3. The Court erred in refusing to direct the State to furnish the Defendant with the criminal record of John H. Wichelms, unindicted co-conspirator, during the trial.

4. The Court erred in denying the Defendant's pretrial request to be furnished with the place of birth, names and addresses of former employers and periods of employment of John H. Wichelms, unindicted co-conspirator.

5. The Court erred in excluding evidence that John H. Wichelms had been convicted of the crime of malicious damage to personal property.

In addition Appellant Cellamare urges that:

The Court erred in reading to the jury the charge commonly known as Commonwealth v. Tuey, 8th of Cushing.

Following the return of the indictment and after the Court had ordered Particulars to be filed by the State on Defendants' Motion therefor, the State filed Particulars. ²

The Defendants contend the indictment is fatally defective and rely on State v. Chick, Me., 263 A.2d 71, 1970, in support of their contention.

A Bill of Particulars, under Rule 7(f) Maine Rules of Criminal Procedure, is available to a defendant who wishes a specification of the acts relied upon by the State.

Particulars have 'been a familiar device in our criminal practice from days before the new Rules.'

State v. Bull, Me., 249 A.2d 881.

Of course, a Bill of Particulars may not be employed to cure a defective indictment.

Van Liew v. United States, 321 F.2d 664 (CCA 5) (1963).

However, in considering the meaning of an indictment concerning which a Bill of Particulars has been filed, one must look not only to the language of the indictment itself but to the accompanying Bill of Particulars as well, not for the purpose of curing a defect, but to elucidate ambiguities appearing in the indictment. ³

Examining the indictment, as elucidated by the Bill of Particulars, we find that the three Defendants are charged with having, in the language of the statute (17 M.R.S.A. 951), 'conspire(d) and agree(d) together with such intent.'

What intent?

'To commit a crime punishable by imprisonment in the State of Maine Prison.'

What crime?

'To steal, take and carry away U.S. currency in excess of the value of $100.00.'

And thus

'Permanently deprive the Portland Giant, Inc., of Auburn Street, City of Portland, County of Cumberland, State of Maine.'

It is constitutionally mandated in all criminal prosecutions the accused shall have a right to demand the nature and cause of the accusation.

Constitution of Maine, Article I, Section 6. Amendment 6, Constitution of the United States.

'These constitutional mandates require that every fact or circumstance necessary to make out a prima facie case of the commission of the crime charged be stated or described in the indictment. Berger v. State, 1951, 147 Me. 111, 83 A.2d 571. These requirements are satisfied when the indictment contains such plain, concise and definite allegations of the essential facts constituting the intended offense as shall adequately apprise an accused of reasonable and normal intelligence of the criminal act charged and the nature thereof, sufficiently enabling him to defend and, upon conviction or acquittal, to make use of the judgment as a basis of a plea of former jeopardy, should the occasion arise.'

State v. Chick, Me., 263 A.2d 71 at 75.

Our Court has held in Lumsden v. State, Me., 267 A.2d 649, and in State v. Doran, 99 Me. 329, 59 A. 440, that in situations where the intended crime is not carried to fruition (such as conspiracy or attempt to break and enter where the general intent to steal goods, completes the offense) the averment of such intent without more, i. e., in general terms, is sufficient.

In Chick, supra, there were no Particulars sought or furnished. The indictment charged the Defendants with intending to 'cheat the inhabitants of the Town of Jay by obtaining therefrom certain money, goods or property by false pretenses and with intent to defraud.'

Certainly that case is distinguishable from the case at Bar.

In Chick one would naturally ask:

What money, goods or property?

The answer to the question can no place be found in the indictment.

One would also logically ask:

By what false pretenses?

The answer no place appears in the indictment.

Not so here.

These Defendants were informed in clear language that the State charged that between September 2, 1968, and October 19, 1968, they met together in the 'Crow's Nest,' the 'Topsail Club,' the 'apartment of John Wichelms,' the 'Giant Store,' and the 'Charter House Motel' and there There was adequate compliance with the requirements of Rule 7(c) Maine Rules of Criminal Procedure and the requirements of the State and Federal Constitutions.

agreed together to commit the crime of larceny of goods having a value in excess of $100.00, and they proposed to accomplish this grand larceny by arranging to have the money in excess of $100.00 which was the property of the Giant Stores placed in a location apart from the safe and arranged to have a person concealed within the premises and arranged for flight from the premises.

The Defendants take nothing by this Point of Appeal.

Points 2 and 3 may be considered together.

The Record shows that prior to the time the case was assigned for trial all three Defendants filed Motions for discovery and Inspection under Rule 16(a) Maine Rules of Criminal Procedure.

Among those things the Defendants asked the State to furnish was 'the criminal record, if any, of John H. Wichelms named in the indictment as an unindicted co-conspirator.'

At the hearing on the Motion the State resisted this request on the ground that such information was not the proper subject of discovery under Rule 16.

The Justice who presided at the hearing on the Motion ⁴ denied the Motion as to this item, saying as reason therefor:

'The Court feels counsel can get that information, if they wish, by other means. The Court does not feel the State has to furnish this to them.'

At the hearing on the Motion the following colloquy took place between Court and counsel for one of the Defendants:

'THE COURT: You must agree with the Court that if and when he takes the stand, of course, the question can be asked by defense counsel.

COUNSEL: That is true, but if we get the answer no, we will not be able to contradict him, if he has a record, because I think it is incumbent upon the defense, when they ask such a question they be able to prove such a record of conviction by a certified copy of docket entries in that particular case in which he was convicted.

THE COURT: Of course, you will be asking in criminal cases for the State to negative all the witnesses they put on stand if we adopt that kind of procedure. If this man is placed on the witness stand and is asked, have you ever been convicted of a crime and answers no, then later on, assume it is proved he has, he committed perjury and the defendants were convicted on perjured testimony, they would be set free. The principle in the case, Mr. Curley, is if the State is required to negative all the witnesses they put on by proving they haven't a court record-

COUNSEL: No, no, no, your Honor. We just wish to be in a position to refute the answer that he might give of no, and the only way that this Court is going to allow us to do that is by a certified copy of docket entries in such a case where he may have been convicted. We will be bound by his answer for the purpose of proceedings in this Court by a no answer if we can't produce evidence here. That is what would go to the Jury, a no answer. In other words, this lily white witness, or prospective witness, stays lily white in the eyes of the Jury. We do have, should I say, suspicions-I know THE COURT: They are-you know criminal records are public records.

that is a horrid word to use in the Courtroom-but we do suspect this fellow does have a criminal record involving moral turpitude, but we have no way of proving it to a Jury that may be assembled here to hear this case.

COUNSEL: How are we going to obtain the same? The State can do it very easily by contacting Washington.

THE COURT: As defense counsel, you have ways and means to obtain Court records of people-who they are and where they are. I have obtained them. Court records are public records.'

16 M.R.S.A. 56 makes this provision:

'No person is incompetent to testify in any court or legal proceeding in consequence of having been convicted of an offense, but conviction of a felony, any larceny or any other crime involving moral turpitude may be shown to affect his credibility.'

It is to be noted the word 'may' is used in the statute. It is unnecessary to reach the question whether or not the statute vests discretion in the Presiding Justice as to whether convictions may be shown in a particular case or to limit the type of convictions which may be presented beyond the limitations found in our statute. ⁵

Thus, under our statute, evidence that Wichelms had been convicted of a felony, any larceny, or any other crime involving moral turpitude was admissible for impeachment purposes.

A felony conviction had in another State...