State v. Van Sickle

• Decision Date: 21 August 1981
• Citation: 434 A.2d 31
• Parties: STATE of Maine v. Daniel W. VAN SICKLE.
• Court: Maine Supreme Court

Page 31

434 A.2d 31

STATE of Maine v. Daniel W. VAN SICKLE.

Supreme Judicial Court of Maine.

Argued March 10, 1981.

Decided Aug. 21, 1981.

David W. Crook, Dist. Atty., Paul D. Mathews, Deputy Dist. Atty. (orally), Augusta, for plaintiff.

Levey & Wessler, Michael Levey (orally), Winthrop, for defendant.

Before McKUSICK, C. J., and GODFREY, NICHOLS, GLASSMAN, ^* ROBERTS and CARTER, JJ.

GODFREY, Justice.

Daniel Van Sickle appeals from a judgment of conviction after a jury trial, for trafficking in a schedule Z drug, marijuana, ¹ in violation of 17-A M.R.S.A. § 1103 (1980) ² entered by the Superior Court, Kennebec County. On appeal, Van Sickle, through different counsel, contends that the failure of his own counsel at trial to move for a new trial or for judgment of acquittal at the close of evidence or after the verdict created reversible error. He urges also that the evidence was insufficient to support the conviction. We deny the appeal.

The indictment and subsequent conviction were based on an alleged sale of marijuana by Van Sickle to an undercover police officer in Gardiner, Maine, on November 14, 1979. At trial on June 24, 1980, the State produced three witnesses: the undercover officer who purchased the marijuana from the defendant; an officer in charge of special investigations who received the marijuana from the undercover officer and delivered it to a chemist; and the chemist who, as an expert, identified the marijuana. The defense produced two witnesses: the defendant and a friend who testified to being present when the appellant and the undercover officer met.

After the State rested, defense counsel moved for a judgment of acquittal on the grounds that (1) no physical evidence of the marijuana or the money paid by the police officer in the transaction had been admitted, and (2) continuity in the chain of custody of the marijuana had not been established because the police officer who conducted the undercover sale could not specifically recall following the routine procedure for marking and securing the marijuana in this case. The court denied the motion. At the close of all evidence, however, defense counsel did not renew his motion for a judgment of acquittal, M.R.Crim.P. 29, or move for a new trial, M.R.Crim.P. 33. ³

I.

Van Sickle contends that the failure of his counsel at trial to make any motions challenging the sufficiency of the evidence at the close of all evidence was prejudicial because it precluded the trial justice from ruling on the sufficiency of the evidence and narrowed the scope of appellate review.

With rare exceptions matters appropriate for review by this Court on appeal present issues involving the possibility of error by the trial court, not by counsel. Accordingly, because a proceeding for post-conviction relief under 15 M.R.S.A. ch. 305-A (Supp.1981) is normally the appropriate process for challenging the adequacy of defense counsel's performance, e. g., State v. Weese, Me., 424 A.2d 705, 711 n. 8 (1981); State v. Gilcott, Me., 420 A.2d 1238, 1240 (1980), we take the appellant's first argument to be that his defense attorney's failure to make such motions had consequences which, as a matter of law, were so prejudicial to the defendant that he has been denied the constitutional right to the effective assistance of counsel under the sixth and fourteenth amendments.

A. Opportunity to Rule on the Sufficiency of the Evidence

Under the Maine Rules of Criminal Procedure, a motion by counsel for judgment of acquittal is not a prerequisite to the authority of the trial justice to grant a judgment of acquittal. Rule 29(a) provides, in part: "The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal ... after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses." Thus, the rule itself refutes the appellant's contention that the trial justice was precluded from ruling on the sufficiency of the evidence: under the rule, the trial justice should assess the sufficiency of the evidence at the close of all evidence and enter judgment of acquittal if he concludes the evidence is insufficient. In the instant case, the record discloses no basis for doubting that the trial justice acted in conformity with Rule 29(a).

B. The Standard of Review

Because counsel failed to move for an acquittal or a new trial at the close of all evidence, appellant argues that the question whether the evidence was sufficient to support the conviction was not properly preserved for appellate review in the ordinary course. Consequently, he says, the Law Court must examine the sufficiency of the evidence under the manifest-error standard, a standard appellant contends is less favorable to him than the standard appellant asserts would be applied if defense counsel had made such motions.

The standard of review to be applied by this Court is not altered by the absence, at the close of all the evidence, of a motion to acquit or for a new trial, with resulting absence of an explicit ruling by the trial court on the sufficiency of the totality of the evidence. First, because the language of Rule 29(a) requires the trial court always to assess the sufficiency of the evidence at the close of all the evidence, it makes little sense to apply different standards of review depending on whether defense counsel has moved the court and obtained an express ruling. ⁴ See State v. Morton, Me., 290 A.2d 371, 373 n. 2 (1972).

Second, whenever sufficiency of the evidence is reviewed, our standard of review must meet the minimal constitutional standard set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), namely, "whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319, 99 S.Ct. at 2789. This Court has long observed, in fact, a substantially equivalent if not identical standard. See, e. g., State v. Doughty, Me., 399 A.2d 1319, 1326 (1979); State v. Rowe, Me., 238 A.2d 217, 223-24 (1968); State v. Wright, 128 Me. 404, 406, 148 A. 141, 142 (1929). The recent decisions of this Court have applied the precise language of Jackson. E. g., State v. Theriault, Me., 425 A.2d 986, 988 (1981); State v. Perfetto, Me., 424 A.2d 1095, 1097 (1981); State v. Lagasse, Me., 410 A.2d 537, 542 (1980). In practice, this Court has consistently applied the standard of review required by Jackson when motions for an acquittal or a new trial have been made and duly ruled upon. Because that standard is the minimum now mandated under Jackson, it follows that this Court must apply that same standard in reviewing the sufficiency of all the evidence even where defense counsel has not moved for acquittal or for a new trial. Under Jackson, we must review the sufficiency of the evidence regardless of whether defense counsel moved for an acquittal or a new trial provided the issue has been raised "by a proper and adequate designation in the points of appeal" and the record is "sufficient to allow the question to be decided." State v. Morton, Me., 290 A.2d 371, 373 n. 2 (1972). Once we determine that review is appropriate, the standard of review applied is the same as that applied when the proper motions have been made. ⁵ Accordingly, we reject Van Sickle's contention that his counsel's failure at trial to move for an acquittal or new trial unconstitutionally deprived him of the effective assistance of counsel.

Our holding in this regard, however, should not be interpreted by the bar as an invitation to abandon the use of the motions for acquittal or new trial. Of course, defense counsel's motion for acquittal or for a new trial based on asserted insufficiency of the evidence should not be automatic; the failure to make one of those motions is not incompetence per se. However, in the interest of sound appellate and trial practice, defense counsel should move for acquittal or for a new trial when, in the judgment of counsel, sufficiency of the evidence is questionable. See State v. Hanson, Me., 331 A.2d 375, 378 (1975); State v. Gamage, Me., 301 A.2d 347, 348 (1973). Such a motion, when appropriate, serves the valuable function of focusing the trial court's attention on the precise weakness in the evidence so that an intelligent and careful ruling can be made by the presiding justice. See State v. Hanson, supra, 331 A.2d at 378. Furthermore, such a motion may lead to the creation of a record from which the Law Court can better discern the context and nature of the asserted insufficiency of the evidence.

II.

The appellant contends that the evidence in the record of proceedings in the Superior Court was insufficient to support the conviction because the state's principal witness, the undercover police officer, could not remember and did not recount "any facts or circumstances surrounding" the sale of marijuana. In short, the appellant argues that the testimony of the police officer was conclusory and therefore incredible.

In reviewing the sufficiency of the evidence, this Court must decide, after examining all the evidence of record in the light most favorable to the State, whether any rational trier of fact could have found proof of defendant's guilt of the crime charged beyond a reasonable doubt. State v. Perfetto, Me., 424 A.2d 1095, 1097 (1981); State v. Lagasse, Me., 410 A.2d 537, 542 (1980). Under the Maine Criminal Code, a person is guilty of unlawful trafficking in a scheduled drug" if he intentionally or knowingly trafficks in what he knows or believes to be any scheduled drug, and which is, in fact, a scheduled drug ...." See note 2, supra. Trafficking is defined in the code to include: "To sell, barter, trade, exchange or otherwise furnish for consideration." 17-A M.R.S.A. § 1101(17)(C). The undercover officer, Reitchel,...