State v. Willette

• Decision Date: 13 June 1979
• Citation: 402 A.2d 476
• Parties: STATE of Maine v. Roger WILLETTE.
• Court: Maine Supreme Court

Page 476

402 A.2d 476

STATE of Maine v. Roger WILLETTE.

Supreme Judicial Court of Maine.

June 13, 1979.

Henry N. Berry, III, Dist. Atty., Peter G. Ballou (orally), Deputy Dist. Atty., Portland, George Schelling, Law Student, for plaintiff.

Pinansky & Schwartz by Jack L. Schwartz (orally), David M. Pinansky, Portland, for defendant.

Before McKUSICK, C. J., POMEROY, ARCHIBALD, DELAHANTY and GODFREY, JJ., and DUFRESNE, A. R. J.

GODFREY, Justice.

Defendant Roger Willette was indicted for second degree arson (17 M.R.S.A. § 161) by a Cumberland County grand jury. His first trial ended in a hung jury and a mistrial. Defendant was retried, found guilty by verdict of a Superior Court jury, and now appeals from the judgment of conviction. We sustain the appeal.

The State has filed a motion in this Court to dismiss the appeal because the defendant did not comply with Rule 37, M.R.Crim.P. On May 24, 1978, the defendant filed a notice of appeal "from the verdict of guilty entered on the 17th day of May, 1978." The notice of appeal was filed before the announcement of sentence and entry of judgment in the criminal docket, both of which occurred on June 19, 1978. The criminal docket also states, under the June 19 entry, "Oral Motion of Notice of Appeal filed in Open Court."

Rule 37, M.R.Crim.P., provides for an appeal by a criminal defendant from a judgment of conviction. "A judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence." Rule 32(b), M.R.Crim.P. There is no provision in the Maine Rules of Criminal Procedure for an appeal from a jury verdict. Defendant's May 24, 1978, notice of appeal was therefore filed prematurely. Moreover, the oral motion made on June 19, 1978, though plainly an appeal from the judgment of conviction, did not comply with Rule 37(b), M.R.Crim.P.

However, the stated purpose of the Rules of Criminal Procedure is to provide for "the just determination of every criminal proceeding." Rule 2, M.R.Crim.P. The State has conceded that it has not suffered any prejudice. To avoid a denial of justice, we conclude that the timely docket entry of June 19 should be considered in conjunction with the written notice of appeal, which, save in the respects mentioned, satisfied the requirements of Rule 37(b), M.R.Crim.P. See Yaretsky v. Blum, 592 F.2d 65 (2d Cir. 1979). Accordingly, we deny the State's motion to dismiss and consider the merits of the appeal.

The charge arose from a fire which damaged the Yankee Squire restaurant in South Portland on November 10, 1975. Expert testimony by the State fire marshal's office established that the fire had been intentionally set. The sole issue at trial was whether the appellant was the arsonist.

The State's case depended almost entirely on the testimony of appellant's former wife, Diane Amoroso. She and appellant had been divorced about six months before the fire; she had remarried before the trial. In addition to testifying that the appellant had admitted setting the fire, Mrs. Amoroso described an evening trip she and appellant had made to the Yankee Squire a few days before the fire. According to her testimony, the following events occurred: Appellant picked her up at her apartment and they drove to South Portland. They first stopped at a gasoline station where defendant took a five-gallon can and said he was going to get some gas. Mrs. Amoroso did not see her former husband fill the can and hence was unable to testify as to its contents.

According to Mrs. Amoroso, they then proceeded to the Yankee Squire motel, entered by a rear door and went to Room 200, which was adjacent to the restaurant. Defendant had a key to the room and they both entered. Appellant searched the room for some keys without success. Appellant then telephoned a "Rocco," explained that the keys were missing and requested instructions. Appellant and Mrs. Amoroso wiped the room clean of fingerprints and left. Before dropping her off, appellant informed her that he would have to go back to the Yankee Squire. The next morning appellant returned to her apartment with a large amount of fresh food in boxes. One of the boxes was marked "Yankee Squire." Appellant insisted that the food be rewrapped and the original wrapping be disposed of. Two days later appellant reappeared and admitted setting the fire. Mrs. Amoroso did not report this admission to the police until May of 1976. She attributed the delay to threats made to her by appellant.

Appellant took the stand and denied that any of the events described by his former wife had taken place. The credibility of those two witnesses was the critical issue in the trial because the State produced no other substantial evidence implicating the defendant. On direct examination, appellant admitted that he was out of the State from September or October of 1976 to September of 1977. Appellant explained to the jury that he left the State because he was out of work and wanted to get away from his former wife, who was then going out with her present husband. Appellant also testified that he was not aware of an indictment against him until he was arrested. Appellant had been indicted for arson on November 5, 1976. On cross-examination, the prosecutor inquired whether appellant was on bail when he left the State. Defense counsel objected. The prosecutor at bench conference explained that he intended "to prove there were charges then pending and he fled the state to avoid prosecution." The presiding justice ruled that he would allow the questioning as relevant to the witness's credibility. Appellant then responded that he was on bail when he left the State.

The prosecutor continued by inquiring whether appellant had pleaded guilty to the charge involved. Defense counsel again objected. The prosecutor explained to the...