State v. Wing

• Decision Date: 18 March 1981
• Citation: 426 A.2d 1375
• Parties: STATE of Maine v. Thomas Jeffrey WING.
• Court: Maine Supreme Court

Page 1375

426 A.2d 1375

STATE of Maine v. Thomas Jeffrey WING.

Supreme Judicial Court of Maine.

Argued Jan. 13, 1981.

Decided March 18, 1981.

Janet Mills, Dist. Atty., Kevin J. Regan, Asst. Dist. Atty. (orally), Auburn, for plaintiff.

Gaston M. Dumais (orally), Lewiston, for defendant.

Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS, ROBERTS and CARTER, JJ.

McKUSICK, Chief Justice.

Defendant Thomas Jeffrey Wing appeals from his Superior Court (Androscoggin County) convictions entered after a jury trial for burglary, 17-A M.R.S.A. § 401 (Supp.1980), and theft, id. § 353. Defendant asserts that his convictions should be reversed because the State failed to prove that the burglary occurred in the building alleged in the indictment and because the presiding justice erroneously refused to give a requested jury instruction concerning an absent witness. Finding no error in the Superior Court proceedings, we deny the appeal.

Defendant's convictions arose out of an incident which took place on the evening of June 10, 1979, on the premises of O'Connor's Pizza in Auburn. On that evening, a break-in occurred in a shed that was located next to the restaurant building of O'Connor's Pizza and that was used to store the empty returnable beer and soda cans used at that business establishment. Several cases of empty cans were removed from the shed. An Auburn police officer who was present in the restaurant at the time of the incident apprehended defendant as he was running from the scene carrying a couple of cases of empty cans. Defendant was indicted on August 14, 1979, by a bill charging separate crimes of burglary and theft.

The first count of that indictment, charging defendant with burglary, alleged that on or about June 10, 1979, defendant

did enter a structure, namely a place of business known as O'Connor's Pizza, the property of Robert O'Connor, knowing that (he was) not licensed or privileged to do so and with the intent to commit theft therein.

The evidence at trial established that there were two structures on the premises of O'Connor's Pizza, namely, the main restaurant building and the storage shed where the burglary took place. After the State rested, defense counsel moved for a judgment of acquittal on the burglary charge on the ground that the State had not proved beyond a reasonable doubt that defendant had broken into and entered the structure referred to in the indictment, namely, in counsel's theory, the main restaurant building of O'Connor's Pizza. The presiding justice denied the motion. We hold that he did not err in doing so.

We conclude that the proof in the case at bar conformed to the tenor of the indictment. The phrase "a structure, namely a place of business known as O'Connor's Pizza, the property of Robert O'Connor" describes either the main restaurant building or the storage shed located adjacent to and used with the restaurant. Each was plainly a "structure" within the meaning of 17-A M.R.S.A. § 401, ¹ the burglary statute. See id. § 2(24). ² Robert O'Connor, the proprietor of O'Connor's Pizza, testified that both buildings were indeed his property. He further testified that the storage shed was located adjacent to the main portion of the restaurant and that the two buildings were placed so close to each other that a person who tried to walk between them might rub his shoulders against both buildings at once. O'Connor also stated that he used the shed to store empty returnable beer and soda cans after the contents had been consumed by the patrons of his pizza restaurant. The shed was in every sense functionally a part of the restaurant. Each building, in short, was "a structure, namely a place of business known as O'Connor's Pizza, the property of Robert O'Connor."

However, even if we were to find the pleading and the proof at variance, that variance would not be fatal. We have previously held that an indictment is sufficient if

a respondent of reasonable and normal intelligence, would, by the language of the indictment, be adequately informed of the crime charged and the nature thereof in order to be able to defend and, if convicted, make use of the conviction as a basis of a plea of former jeopardy, should the occasion arise.

State v. Charette, 159 Me. 124, 127, 188 A.2d 898, 900 (1963). For the reasons already stated, the language of the indictment was sufficient to apprise defendant of the nature of the burglary offense with which he was charged. Particularly under the liberalized pleading requirements of M.R.Crim.P. 7(c), see State v. St. Clair, Me., 418 A.2d 184, 188 (1980), the fact that both the shed and the restaurant building could be characterized as "a structure, namely a place of business known as O'Connor's Pizza, the property of Robert O'Connor," does not render the indictment so indefinite that it fails to inform defendant of the essential facts concerning the burglary charge, see State v. Ball, 432 S.W.2d 265, 266 (Mo.1968); ³ see also People v. Walker, 47 Ill.App.3d 737, 738-739, 8 Ill.Dec. 190, 192, 365 N.E.2d 428, 430 (1977). Defendant could have resolved any pretrial uncertainties he may have had as to which structure was specified in the indictment by moving for a bill of particulars under M.R.Crim.P. 16(c)(2), see State v. Ball, supra at 266. His counsel elected not to exercise that option.

Furthermore, in the unlikely event that defendant is hereafter reindicted, the indictment in the case at bar, taken along with the evidence at trial as well as this opinion, see State v. Damon, Me., 395 A.2d 121, 122 (1978); State v. Nappi, Me., 369 A.2d 230, 232 (1977); State v. Kimball, Me., 359 A.2d 305, 307 (1976), will protect him by showing that he has already been tried and convicted of breaking and entering the storage shed. Those recent and well-considered decisions of the Law Court are fully supported by the opinions of the United States Supreme Court. That Court has consistently held that in a second prosecution the accused who asserts a defense of former jeopardy not only may rely on the record at large in the first case, Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-1047, 8 L.Ed.2d 240 (1962), but also may "resort to parol testimony to show the subject-matter of the former conviction," Bartell v. United States, 227 U.S. 427, 433, 33 S.Ct. 383, 384-385, 57 L.Ed. 583 (1913). See also United States v. Haas, 583 F.2d 216, 221 (5th Cir. 1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1788, 60 L.Ed.2d 240 (1979). This defendant is adequately protected from any danger of reprosecution for the same offense. While the better practice would indeed have been for the State to be as precise as possible in describing the structure that was broken into, no shortcoming in this indictment requires reversal of defendant's conviction thereon.

Defendant's second claim of error, by which he attacks both convictions, is also without merit. After the jury had retired and had deliberated for about an hour, the foreman requested the presiding justice to explain to the jury why one Richard Roy, who had been mentioned as a potential witness for the State during voir dire, had never taken the stand. Other witnesses had alluded to the fact that Mr. Roy had been present in the restaurant at the time of the June 10, 1979, incident, and had informed the restaurant owner and the Auburn police officer who was present at the time that a crime might be taking place. Defense counsel asked the justice to charge the jury that the absence of Mr. Roy from trial should give rise to an inference unfavorable to the State. The justice, however, declined to do so, and instead instructed the jury that they were to decide the case solely on the evidence presented. He thereby committed no error.

In the case at bar, the prosecutor told the presiding justice that he had mentioned Mr. Roy as one of his potential witnesses during voir dire because he hoped to be able to call him, but that Mr. Roy had been unavailable throughout trial. Moreover, there was no assertion at trial by defense counsel, nor is there any suggestion elsewhere in the record, that any testimony by Mr. Roy would have been other than merely cumulative of evidence already in the record. Indeed, defense counsel does not deny on appeal that the testimony of the restaurant owner and the police officer indicated that Mr. Roy's testimony would have been harmful to defendant. Where, as here, the missing witness was apparently equally unavailable to both the State and defendant and the record does not indicate that his testimony would have been detrimental to the State, the trial justice committed no error in declining to give the requested instruction. See Craig v. State, Ind., 404 N.E.2d 580, 583 (1980); United States v. Williams, 496 F.2d 378, 383 (1st Cir. 1974).

The entry must be:

Appeal denied.

Judgments of conviction affirmed.

WERNICK, GODFREY, NICHOLS and ROBERTS, JJ., concurring.

ROBERTS, J., with whom GODFREY, J., joins, writes separately in explanation of his concurrence.

CARTER, J., dissenting.

ROBERTS, Justice, concurring, with whom GODFREY, Justice, joins.

I join with the majority of the Court for three reasons, the last of which prompts me to write separately.

My first reason is that there is no variance between the indictment and the proof. Wing was charged with entry into a structure owned by Robert O'Connor. The additional allegation, "namely a place of business known as O'Connor's Pizza," did not necessarily narrow the scope of the indictment to only the principal structure used in that business. I reject the suggestion of Justice Carter that the indictment must contain a sufficient description to eliminate all other structures. Such a suggestion belies the promise of simplification inherent in the Supreme Judicial Court's adoption of M.R.Crim.P. 7(c). See H. Glassman, Maine Practice, Rules of Criminal Procedure § 7.3 (1967). ¹

My second reason, and a point ultimately conceded by Justice...