State v. Viger
| Decision Date | 24 October 1978 |
| Citation | 392 A.2d 1080 |
| Parties | STATE of Maine v. George VIGER. |
| Court | Maine Supreme Court |
Thomas E. Delahanty, II, Dist. Atty. (orally), Auburn, for plaintiff.
Hanscom & Carey, P. A. by Thomas S. Carey (orally), Rumford, for defendant.
Before McKUSICK, C. J., and WERNICK, ARCHIBALD and NICHOLS, JJ.
An Oxford County jury found George R. Viger guilty of theft of property valued at more than.$1000.00. 17-A M.R.S.A. §§ 351, 362. From the judgment of conviction the defendant brings this timely appeal, which we deny.
From the evidence presented at trial the jury would be warranted in finding the following as facts:
Three Motorola portable, two-way radios (walkie-talkies) that had been purchased for $865.00 each were stolen from the Boise Cascade paper mill in Rumford sometime between June 4, 1977, and June 6, 1977. The appellant as an employee of the Boise Cascade Company had access to the area from which the radios were stolen, and was working at the mill at the time of the theft.
Around June 10, 1977, the appellant spoke with the Rumford Fire Chief regarding the purchase of three used walkie-talkies. As vice-chairman of the Rumford Public Service Commission, the appellant was cognizant of the.$1000.00 budgeted for the purchase of a hand-held, two-way radio for the fire department. Mr. Viger turned the three stolen radios over to the fire chief for inspection. At a subsequent meeting of the Commission, on a motion seconded by Mr. Viger, it was voted to purchase the radios for $700.00. Sometime later the fire chief discovered that the radios had been stolen from Boise Cascade.
The appellant maintained that he received the radios on June 6 or 7, 1977, from a person named Henry Brown who, according to the appellant, worked for Northeast Contractors. Northeast had purchased the radios for use on its construction project at the Boise Cascade mill but had been reimbursed therefor by Boise Cascade and had turned the radios over to Boise Cascade's field engineer.
The appellant argues five trial errors in support of his appeal.
During the testimony of Boise Cascade's field engineer the State, over objection, introduced Exhibit 4, a series of invoices and other related documents generated by the purchase of the stolen radios and other affiliated equipment. In laying a foundation for the admission of Exhibit 4 into evidence, the State elicited from the engineer only the statement that these records were "regular records kept in the course of business."
Rule 803(6), M.R.Evid., 1 sets forth three requirements for the offer of a business record to survive an objection based upon hearsay. (1) The record must be made at or near the time of the transaction by a person with knowledge of the event. (2) The record must have been kept in the regular course of business. (3) The business must have a regular practice of making such records. In laying a foundation the State failed to show that the record had been made in the regular course of business, by one with knowledge of the transaction and at a time close to the event.
We find, however, that this error was harmless. The engineer was allowed to testify describing the purchase price of the radios. The stolen radios had serial numbers in sequential order, and the witness could identify one of the radios as the one he had used while working at Boise Cascade. Moreover, the appellant did not contest the fact that all three of the radios had, in fact, been stolen from Boise Cascade. The invoices provided no other information. The effect of the invoices, therefore, was merely cumulative, and their admission did not affect the substantial rights of the defendant M.R.Crim.P. 52(a).
Over appellant's objection the engineer was allowed to state his opinion of the radios' value. Appellant argues that the engineer was not competent to do so.
We disagree.
The preliminary question of an expert witness' competence is for the presiding justice, and his ruling is conclusive unless based upon an error of law or is otherwise unjustified. Gosselin v. Better Homes, Inc., Me., 256 A.2d 629, 639 (1969); F. X. Bilodeau Realty, Inc. v. Lewiston Urban Renew. A., Me., 237 A.2d 398, 399 (1968). In this case the field engineer was responsible for the purchase of all equipment and supplies used by outside contractors working at Boise Cascade and, therefore, would be aware of the cost of various pieces of equipment and supplies. In fact, he testified to the purchase price of each of the stolen radios. The witness actually used one of the stolen radios and supervised the use of the others. He was, therefore, familiar with the condition of the radios and the amount of use which they had been given. Since the witness had this knowledge and an opinion as to the worth of the radios, the trial justice was not clearly erroneous in determining that he had sufficient specialized knowledge that would assist persons of ordinary experience in determining the issue of value. State v. Ifill, Me., 349 A.2d 176, 183 (1975).
The determination of the presiding justice, therefore, is conclusive.
Appellant offered to prove through the testimony of the Rumford town manager that the bid procedure which Rumford utilized would have made it impossible for the appellant to realize a profit from the sale of the portable radios. The presiding justice excluded the testimony as not relevant.
The determination of the relevance of evidence is within the sound discretion of the presiding justice. State v. Kelley, Me., 357 A.2d 890, 895 (1976); State v. Westphal, Me., 349 A.2d 168, 171 (1975). The standard of review being the ascertainment of abuse of discretion, we find none here.
Earlier testimony had revealed that the town would not utilize the bid procedure if it could buy used equipment inexpensively, such as in the situation here. Any testimony regarding the nature of the transactions which might have ensued between the town of Rumford and the appellant involving the purchase and sale of the radios, therefore, would have been purely speculative. Moreover, in attempting to demonstrate lack of any profit motive because the bid procedure supposedly made pecuniary gain by a commissioner impossible, the appellant failed to demonstrate his awareness of the procedure, an essential link in obviating any profit motive of the appellant. Obviously, one can be ignorantly motivated by profit while ultimate success is clearly impossible.
III-B
The appellant also offered to prove through the testimony of an electronics equipment dealer that someone who may have been an employee of Northeast Contractors offered to sell used equipment to him at about the same time when the three radios were stolen. Viger asserted that the testimony would tend to substantiate his contention that he had innocently received the stolen radios from an employee of Northeast Contractors. The appellant offered no evidence to show that the employee from whom he purportedly received the radios was, in fact, the same person who may have been a Northeast employee and who had attempted to consummate the sale.
In excluding this evidence the presiding justice did not abuse his discretion. That there was theft of other equipment by an employee of Northeast Contractors has only a minimal tendency to prove that the three radios were also stolen by an employee of Northeast Contractors, who delivered them to the appellant. In contrast, the admission of the proffered testimony would shift the focus of the trial to extraneous events, the theft of other equipment, and would tend to confuse the issues, mislead the jury and unnecessarily waste time. See Rule 403, M.R.Evid.
IV
Within his summation Mr. Viger's attorney attempted to review certain portions of the testimony of the Rumford Fire Chief. On cross-examination of the chief, counsel for appellant had been allowed to go into the matter of the bid procedure utilized by the town of Rumford, but the presiding justice had correctly excluded as irrelevant similar testimony offered by appellant. Believing that counsel was attempting to argue matters not in evidence, the presiding justice instructed the jury to disregard all remarks of counsel pertaining to the processing of payments for purchased equipment and foreclosed any further argument in that vein by appellant's counsel.
Although the trial justice was mistaken in his reasons for restricting the argument of counsel, he was nevertheless correct in doing so. The scope and extent of oral argument is within the sound discretion of the presiding justice. U. S. v. Quinn, 467 F.2d 624 (8th Cir. 1972); U. S. v. Smith, 433 F.2d 1266 (5th Cir. 1970); 23A...
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State v. Rand
...other appropriate relief if the conduct of the defense would be prejudiced by lack of fair notice or by surprise. See State v. Viger, Me., 392 A.2d 1080, 1085, n. 5 (1978). Otherwise, if an indictment or information purported to accuse the defendant of theft by specifying only one manner of......
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State v. Therriault
...listed above. State v. Burnham, 427 A.2d 969, 972 (Me.1981); State v. Howard, 405 A.2d 206, 210 (Me.1979); see State v. Viger, 392 A.2d 1080, 1083 (Me.1978); see generally 4 J. Weinstein & M. Berger, Weinstein's Evidence, p 803(6) (1981 & Supp.1983). Defendant called no such witness. Usuall......
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State v. Brasslett
...of itself does not bring him within the relief exception of section 351. The defendant is presumed to know the law. See State v. Viger, Me., 392 A.2d 1080, 1085-86 (1978). In conclusion, there was no error in the Superior Court's denial of the defendant's motions for continuance or for Fina......
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State v. Snow
...such factual determinations preliminary to the admission of evidence by the "clearly erroneous" standard. See, e.g., State v. Viger, Me., 392 A.2d 1080, 1083 (1978) (expert's credentials); State v. Carter, Me., 391 A.2d 344, 346 (1978) (probable cause for warrantless search); State v. Parki......