State v. Tullo

• Citation: 366 A.2d 843
• Parties: STATE of Maine v. Frank T. TULLO.
• Decision Date: 02 December 1976
• Court: Supreme Judicial Court of Maine (US)

Page 843

366 A.2d 843

STATE of Maine v. Frank T. TULLO.

Supreme Judicial Court of Maine.

Dec. 2, 1976.

Paul Dionne, Asst. County Atty., Lewiston, J. Scott Davis, Student Prosecutor, Auburn, for plaintiff.

Lendall L. Smith, Brunswick, for defendant.

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

DUFRESNE, Chief Justice.

On July 30, 1974 Constance Martel was living on the Ferry Road in Lewiston, Maine in a two-level home which she owned jointly with her husband. The house is set about twenty-five feet from the road on a 3 1/2 acre plot some 1 1/2 miles from the nearest neighbor. The Martels both work during the daytime, but on this particular day Mrs. Martel felt ill and returned home shortly after the clock struck twelve noon. Alone in the house, she was resting in bed when at 1:30 or thereabouts she heard an automobile approaching. Anxious to find out who might be coming to visit, she went to the bedroom window and saw two male strangers exit from a station wagon parked in the road. She thought there were three other individuals in the car. The paint job on the vehicle attracted her attention as she observed an undercoating of white over which a black primer had been spread. The two individuals went to the front door, rang the bell and, when no response was forthcoming, they opened the aluminum combination screen door and tried the inner wooden door by turning the doorknob. The security of the building at the front door caused them to repair to the garage doors which they tested for fastness without success. At that point Mrs. Martel's blaring radio torpedoed any further reconnoitering, and the two subjects were seen running away to re-enter the waiting station wagon which then quickly vanished from the area.

Mr. Martel and the police were called to the home and Mrs. Martel gave a full recital of the previous events, together with a description of the two visitors.

After their departure, Mrs. Martel did not go back to bed. She was not destined, however, to get the rest she contemplated that afternoon. Barely one half hour had gone by, when the same car reappeared and the same two men moved towards the front door again. The automobile, in which there were three other occupants, this time around was stopped in the driveway; this permitted Mrs. Martel to notice the front license plate made of cardboard on which the license numbers were written in pencil. On this second trip, the two subjects again opened the combination screen door and then pounded on the inner wooden door. At that point Mrs. Martel, who was at the upper level, made loud noises to indicate her presence in the house. The outer door was then shut and Mrs. Martel, who had then reached the front door, opened the same, locked the combination door and asked the two visitors what they wanted, to which they replied: 'Nothing.' The group then left without delay.

Shortly thereafter, Mrs. Martel went to the Lewiston Police Station where she identified the defendant from a display of six photographs of different individuals. Having been alerted through radio contact, a Lewiston police officer stopped a 1966 Ford Falcon station wagon with black primer marks answering the description given by Mrs. Martel. The defendant was the operator and five people were in the car.

On the basis of the reference scenario, the defendant was charged with the commission of the crime of willfully attempting to enter a dwelling house without the permission of the owner or occupant, the complaint alleging that

'on 30th day of July, 1974, in the City of Lewiston, County of Androscoggin, and State of Maine, the above named defendant, Frank Tullo, did then and there wilfully attempt to enter the dwelling house of Mr. and Mrs. Roger Martel without the permission of the owners or occupants thereof, and pursuant to said attempt, did open the outer door to said dwelling house and did turn the doorknob of the inner door in an unsuccessful attempt to gain entry.'

contrary to the provisions of 17 M.R.S.A., § 3854. ¹

Tried before a jury in the Superior Court (Androscoggin County), the defendant was found guilty as charged and he appeals to the Law Court from the ensuing judgment and sentence, the latter being incarceration in the county jail for the term of ninety (90) days. We deny the appeal.

I

Motion for new trial

After jury verdict, judgment of conviction and sentence, the defendant seasonably filed a motion for new trial or, in the alternative, for judgment of acquittal on the ground that the evidence was insufficient to support a conviction of the crime of attempted criminal trespass. His underlying contention in support of his claim or error in the denial of his motion is that the defendant was identified at the trial as the perpetrator of the attempted trespass by only one witness, Mrs. Martel, and that her testimony was unreliable and insufficient to support a conviction to the degree of proof beyond a reasonable doubt. We disagree.

Proof beyond a reasonable doubt, so as to warrant conviction, may rest upon the testimony of a single witness. State v. Trask, 1966, Me., 223 A.2d 823, 825; State v. Newcomb, 1951, 146 Me. 173, 78 A.2d 787. A review of the evidence convincingly supports the jury who resolved the issue of credibility in favor of the State and against the defendant. Furthermore, there was some corroboration from the arresting officer in the fact that the defendant, shortly after the occurrence, was stopped at the wheel of the automobile described by Mrs. Martel, which automobile she later positively identified when she came upon it on her way from the restaurant on the evening of the day in question.

In support of his claim of error in relation to the denial of the motion for acquittal or new trial, the defendant further advances the argument that the evidence at trial falls short of sustaining the State's burden of proof beyond a reasonable doubt respecting a necessary element of the statutory crime charged, to wit, the willful attempt to enter the Martel dwelling house without the permission of the owner or occupant thereof. Again, we disagree.

The statute, 17 M.R.S.A., § 3854, at the time of the alleged offense, defined the misdemeanor type of criminal trespass in the following terms:

'Whoever willfully enters, or attempts to enter, any dwelling house . . ., without the permission of the owner or occupant thereof, shall be punished . . .' (Underscoring ours).

In order to resolve the issue whether the evidence in the instant case supported the criminal trespass charge beyond a reasonable doubt, one must initially determine what type of conduct the Legislature meant to proscribe by prohibiting the 'willful' entry, or 'willful' attempted entry, of a dwelling house without permission of the owner or occupant thereof. In other words, in what sense was the term 'willful' used?

The word 'willful,' in common parlance and, generally speaking, in statutory enactments proscribing specific conduct, relates to an act or omission done intentionally, deliberately, and/or designedly, as distinguished from an act or omission done accidentally, inadvertently, or innocently. State v. Russell, 1968, 73 Wash.2d 903, 433 P.2d 988, 991; State v. Clark, 1860, 29 N.J.L. 96.

Every unauthorized entry on the land of another is a trespass and anyone who makes such an entry is a trespasser. Foley v. Farnham Co. (Malloy v. Farnham Co.), 1936, 135 Me. 29, 34, 188 A. 708.

The law provides a civil remedy for trespasses as such, provided they are intentional and voluntary. As stated in Hayes v. Bushey, 1964, 160 Me. 14, 17, 196 A.2d 823, 825:

'It is necessary to keep in mind the distinction between the intention to do a wrongful act or commit a trespass and the intention to do the act which results in or constitutes the intrusion. One may intend to enter upon the land of another but under the reasonable misapprehension that his entry is lawful. Such a mistake does not avoid his liability for trespass. It is only the intention to enter the land of another that is an essential element of trespass and the absence of such an intention or such negligence as will substitute therefor will destroy liability.' (Emphasis in original)

At common law, however, a mere invasion of private property was not a crime, unless it was accompanied by, or tended to create, a breach of the peace. Criminal sanctions against unauthorized entries upon the land of another were imposed, if at all, for the protection of public safety, rather than for the protection of the property rights of the owner or occupant. Relief in the case of trespasses involving no breach of the public peace was limited to self-help in removing the trespasser or to a civil action for damages. People v. Goduto, 1961, 21 Ill.2d 605, 174 N.E.2d 385; State v. Wheeler, 1830, 3 Vt. 344, 348.

Section 3854 of Chapter 17 (P.L.1955, c. 405-P.L.1973, c. 494) imposes criminal liability for an entry or attempted entry of a dwelling house without permission of the owner or occupant thereof, only if the entry or the attempt to enter is 'willful.' But the word 'willfully' in the statute means something more than a voluntary act, and more, also, than an intentional act which in fact is wrongful. Otherwise, the use of the word 'willfully' would be mere surplusage.

Whether the literal meaning of the words of a statute will control as against a broader or more narrow interpretation of their possible intendment depends upon the policy the Legislature is seeking to implement and the goals it intends to reach through such legislation. Finks v. Maine State Highway Commission, 1974, Me., 328 A.2d 791, 797.

Legislative intent, if ascertainable, must prevail and be given effect. Finks, supra, at 797; Davis v. State, 1973, Me., 306 A.2d 127, 130.

Nothing should be treated as surplusage, if a reasonable interpretation supplying meaning and force is possible, and this, in the construction of a criminal statute. See Finks, ...