State v. Gordon

An indictment returned (on June 27, 1972) by a Cumberland County Grand Jury to the Superior Court charged defendant, Richard John Gordon, with having committed the crime of “armed robbery” in violation of 17 M.R.S.A. § 3401-A. 1 A separate indictment accused defendant of having, with intention to kill, assaulted a police officer, one Harold Stultz. Defendant was arraigned and pleaded not guilty to each charge. Upon motion by the State, and over defendant’s objection, the presiding Justice ordered a single trial on the two indictments. The trial was before a jury. On the “assault” the jury was unable to reach a verdict' and as to that charge a mistrial was declared. The jury found defendant guilty of “armed robbery.” From the judgment of conviction entered on the verdict defendant has appealed, assigning ten claims of error.

We deny the appeal.

The jury was justified in finding the following facts.

*355 One Edwin Strode, and defendant had escaped in Vermont from the custody of the authorities who had been holding them on a misdemeanor charge. In the escape defendant and Strode had acquired two hand guns and also a blue station wagon in which they had fled from Vermont through New Hampshire into Maine. Near Standish, Maine, the station wagon showed signs of engine trouble, and defendant and Strode began to look for another vehicle. They came to the yard of one Franklin Prout. In the yard was Prout’s 1966 maroon Chevelle and defendant, who was operating the station wagon, drove it par-rallel to the Prout Chevelle. Observing that the keys were in the Chevelle, Strode left the station wagon and entered the Chevelle. At this time Prout came out of his house into the yard. Strode pointed a gun at him, and defendant and Strode then told Prout that they needed his automobile, were going to take it but they “would take care of it and see he [Prout] got it back as soon as possible.” With defendant operating the station wagon and Strode the Chevelle, defendant and Strode left the yard and proceeded in the direction of Westbrook. Subsequently, the station wagon was abandoned in a sand pit, and defendant and Strode continued their flight in the Chevelle. A spectacular series of events followed — including the alleged assault (with intent to kill) upon Westbrook police officer, Stultz, a shoot-out on Main Street in Westbrook, and a high speed police chase, during which the Chevelle was driven off the road in the vicinity of the Maine Medical Center in Portland where it was abandoned, Strode and defendant having commandeered another automobile to resume their flight. Ultimately, both the defendant and Strode were apprehended, defendant having been arrested on the day following the police chase in the vicinity of the State Police Barracks in Scarborough.

1.

As a first point of appeal, defendant maintains that the evidence clearly established that (1) defendant and Strode had told Prout that they “would take care of [the automobile] and see [that] he [Prout] got it back as soon as possible” and (2) defendant intended only a temporary use of Prout’s Chevelle. Defendant argues that the evidence thus fails to warrant a conclusion beyond a reasonable doubt that defendant had the specific intent requisite for “robbery.” (Hereinafter, reference to the “specific intent” necessary for “robbery” signifies the “specific intent” incorporated into “robbery” as embracing “larceny.”)

Although defendant is correct that robbery is a crime requiring a particular specific intent, State v. McKeough, Me., 300 A.2d 755 (1973), 2 defendant wrongly apprehends its substantive content.

A summarizing statement appearing in defendant’s brief most clearly exposes his misconception of the law. Acknowledging that on all of the evidence the jury could properly

“ . . . have inferred . . . that [defendant and Strode] . . . intended to get away from the authorities by going to New York or elsewhere where they would abandon the car . ”, (emphasis supplied)

defendant concludes that, nevertheless, the State had failed to prove the necessary specific intent because it is

*356 “ . . . entirely irrational to conclude . that the defendant himself intended at the time he and Strode took the car, to keep the car in their possession for any length of time.” (emphasis supplied)

Here, defendant reveals that he conceives as an essential element of the specific intent requisite for “robbery” that the wrongdoer must intend: (1) an advantageous relationship between himself and the property wrongfully taken, and (2) that such relationship be permanént rather than temporary.

Defendant’s view is erroneous. The law evaluates the “animus furandi” of “robbery” in terms of the detriment projected to the legally protected interests of the owner rather than the benefits intended to accrue to the wrongdoer from his invasion of the rights of the owner.

As shown by various of the cases compiled in the Annotation 12 A.L.R. 804, et seq., appended to a decision of the Nebraska Court in McIntosh v. State, 105 Neb. 328, 180 N.W. 573, 12 A.L.R. 798 (1920), many of the earlier decisions reveal language disagreements, as well as conflicts as to substance, concerning whether a defendant can be guilty of “robbery” without specifically intending a gain to himself (whether permanent or temporary), so-called “lucri causa.” In the more recent cases, there is overwhelming consensus that “lucri causa” is not necessary. See: pertinent cases assembled in the A.L.R. Annotation, supra, and in 50 Am.Jur.2d, Larceny § 39, (pp. 198-201).

In two earlier opinions of this Court language appears suggesting that “lucri causa” is essential to the “animus furandi” of larceny. In State v. Coombs, 55 Me. 477, 480 (1868) it is stated that the wrongful taker of the property must intend to “convert it to [his] . . . use ..” In State v. Morin, 131 Me. 349, 352, 163 A. 102, 103 (1932) the phrasing is that the wrongdoer must intend

“to deprive the owner of his property and appropriate the same . . ..” (emphasis supplied)

The language, “convert it to the taker’s use”, in State v. Coombs, supra, is part of a quotation from Baron Parke in Regina v. Holloway, 2 Car. & Kir. 942, 944 (1848). Had Coombs fully quoted Baron Parke, it would have shown that he was speaking of a then prevalent definition advanced by one, “Mr. East” which Baron Parke thought misleading and in need of clarification. Baron Parke explained that the “East” definition would be correct only if taken to mean that the “animus furandi” in larceny is

“ ‘intent’ ... to deprive the owner, not temporarily, but permanently, of his property.” (p. 946)

Further, in Regina v. Holloway, supra, Baron Parke asserted that the case of Rex v. Webb and Moyle, 1 M.C.C. 431 (1935) was authority that the specific intent requisite for larceny is constituted solely by the intent to deprive the owner permanently of his property and, hence, “lucri causa” is not an essential element of it. (p. 845). 3 Finally, all of the other judges in Regina v. Holloway (who gave expression to their views) — Alderson, B., Lord Denman, C. J., and Coliman, J., — agreed with Baron Parke that the specific intent requisite for larceny is only the intent to deprive permanently the owner of his property, (pp. 945-947)

The same point clarifies this Court’s use in State v. Morin, supra, of the concept of “appropriation” in conjunction with the language “to deprive the owner of his property.” The opinion refers to one authority: 2 Bishop’s New Crim. Law, § 379. The author of that treatise, like Baron Parke in Regina v. Holloway, supra, carefully explains that words such as “appro *357 priate” or “convert ... to the taker’s use” are not intended to convey that “lucri causa” is essential but only to emphasize that the defendant must intend conduct producing a permanent, rather than temporary, effect upon the owner’s interest to have continuing enjoyment of his property. 2 Bishop’s Criminal Law (9th ed., 1923) §§ 840 and 841 (at pp. 638 and 640). Citing English cases: — Regina v. Jones, 1 Den.C.C. 188, 2 Car. & Kir. 236; Regina v. Privett, 1 Den.C.C. 193, 2 Car. & Kir. 114; Rex v. Morfit, Rus. & Ry. 307 and Rex v. Cabbage, Rus. & Ry. 292, the “Bishop” text asserts:

“The English courts seem at last to have utterly overthrown the old notion of lu-cri causa.” (Section 846 at p. 645)

Bishop then states the ultimate conclusion that “on principle” it is erroneous to require lucri causa since this

“is to place the love of greed, as a base motive, pre-eminent over all other base motives. . . . [In any event] it is immaterial to the person injured what species of base motive moved the wrongdoer. And the wrong to society is the same whatever the nature of the baseness.” (Section 848 at p. 647)

We now decide, in confirmatory clarification of the law of Maine, that “lucri causa” is not an essential element of the “animus furandi” of “robbery.” As stated most recently in State v. McKeough, supra, the specific intent requisite for “robbery” is defined solely in terms of the injury projected to the interests of the property owner:- — specific intent “to deprive permanently the owner of his property.” (300 A.2d p. 757) Also: State v. Greenlaw, 159 Me. 141, 189 A.2d 370 (1963); Stanley v. Prince, 118 Me. 360, 108 A. 328 (1919); Wheeler v. Phoenix Assurance Company, Ltd., 144 Me. 105, 65 A.2d 10 (1949).

The instant question thus becomes: on the hypothesis, arguendo, that defendant here actually intended to use the Prout automobile “only temporarily” (as he would need it to achieve a successful flight from the authorities), is defendant correct in his fundamental contention that this, in itself, negates, as a matter of law, specific intent of defendant to deprive permanently the owner of his property? We answer that defendant’s claim is erroneous.

Concretely illustrative of the point that a wrongdoer may intend to use wrongfully taken property “only temporarily” and yet, without contradiction, intend that the owner be deprived of his property permanently is the case of a defendant who proposes to use the property only for a short time and then to destroy it. At the opposite pole, and excluding (as a matter of law) specific intent to deprive permanently the owner of his property, is the case of a defendant who intends to make a temporary use of the property and then by his own act to return the property to its owner. Between these two extremes can lie various situations in which the legal characterization of the wrongdoer’s intention, as assessed by the criterion of whether it is a specific intent to deprive permanently the owner of his property, will be more or less clear and raise legal problems of varying difficulty.

In these intermediate situations a general guiding principle may be developed through recognition that a “taking” of property is by definition “temporary” only if the possession, or control, effected by the taking is relinquished. Hence, measured by the correct criterion of the impact upon the interests of the owner, the wrongdoer’s “animus furandi” is fully explored for its true legal significance only if the investigation of the wrongdoer’s state of mind extends beyond his anticipated retention of possession and includes an inquiry into his contemplated manner of relinquishing possession, or control, of the property wrongfully taken.

On this approach, it has been held that when a defendant takes the tools of another person with intent to use them tempo *358 rarily and then to leave them wherever it may be that he finishes with his work, the fact-finder is justified in the conclusion that defendant had specific intent to deprive the owner permanently of his property. State v. Davis, 38 N.J.L. 176 (1875). Similarly, it has been decided that a defendant who wrongfully takes the property of another intending to use it for a short time and then to relinquish possession, or control, in a manner leaving to chance whether the owner recovers his property is correctly held specifically to intend that the owner be deprived permanently of his property. State v. Smith, 268 N.C. 167, 150 S.E.2d 194 (1966).

The rationale underlying these decisions is that to negate, as a matter of law, the existence of specific intent to deprive permanently the owner of his property, a wrongful taker of the property of another must have in mind not only that his retention of possession, or control, will be “temporary” but also that when he will relinquish the possession, or control, he will do it in some manner (whatever, particularly, it will be) he regards as having affirmative tendency toward getting the property returned to its owner. 4 In the absence of such thinking by the defendant, his state of mind is fairly characterized as indifference should the owner never recover his property; and such indifference by a wrongdoer who is the moving force separating an owner from his property is appropriately regarded as his “willingness” that the owner never regain his property. In this sense, the wrongdoer may appropriately be held to entertain specific intent that the deprivation to the owner be permanent.

In Commonwealth v. Salerno, Mass., 255 N.E.2d 318 (1970) the Massachusetts Court adopted this principle, holding that:

“One who takes property without the authority of the owner and [with] indifference whether the owner recovers possession may be found to intend to deprive the owner of it permanently.” (p. 321)

We agree.

On this basis, the evidence in the present case clearly presented a jury question as to defendant’s specific intent. Although defendant may have stated to the owner, Prout, that defendant

“would take care of . [the automobile] and see [that] [Prout] got it back as soon as possible”,

defendant himself testified that

“[i]n my mind it was just to get out of the area. . . . Just get out of the area and leave the car and get under cover somewhere.”

This idea to “leave the car” and “get under cover somewhere” existed in defendant’s mind as part of an uncertainty about where it would happen. Because defendant was “. . . sort of desperate during the whole day”, he had not “really formulated any plans about destination.”

Such testimony of defendant, together with other evidence that defendant had already utterly abandoned another vehicle (the station wagon) in desperation, plainly warranted a jury conclusion that defendant’s facilely uttered statements to Prout were empty words, and it was defendant’s *359 true state of mind to use Prout’s Chevelle and abandon it in whatever manner might happen to meet the circumstantial exigencies of defendant’s predicament- — without defendant’s having any thought that the relinquishment of the possession was to be in a manner having some affirmative tendency to help in the owner’s recovery of his property. On this finding the jury was warranted in a conclusion that defendant was indifferent should the owner, Prout, never have back his automobile and, therefore, had specific intent that the owner be deprived permanently of his property.

In arriving at this decision, we have in mind this Court’s approach to the instruction requested in State v. Greenlaw, supra:

“If you find that Respondents intended to take the cab but to take it only temporarily, then your verdict as to robbery and also larceny must be not guilty.” (159 Me. p. 147, 189 A.2d p. 373)

One point made in Greenlaw was that although the presiding Justice had instructed the jury that defendant’s specific intent must be to deprive the owner of his property, he had entirely omitted to mention the further legal requirement that such deprivation must be intended as permanent (and not merely temporary). Hence, the requested instruction would have been beneficial because, in the language of Green-law, it

“would have afforded an elucidation which under the circumstances must be deemed to have been necessitous and properly would have supplied definitive enlightenment unpossessed by the jury.” (159 Me. p. 149, 189 A.2d p. 374)

In this aspect, the Court’s approach in Greenlaw was clearly correct.

In a further critical respect, however, (see ante) the requested instruction was incomplete and, therefore, an erroneous statement of the law of “animus furandi.” Confining itself to the ultimate conclusory statement:

“[i]f . . . Respondents intended to take the cab . . . only temporarily”,

the requested instruction mandated that the jury return a “not guilty” verdict without further requiring the jury to determine whether respondents had in mind a relinquishment of possession, or control, in a manner thought by them to have some tendency affirmatively to assist in a return of the cab to its owner. As our prior discussion clarifies, notwithstanding that the respondents in Greenlaw may have intended to retain possession of the cab “only temporarily”, if they did not have in mind the thought of relinquishing possession, or control, of the cab in some manner they deemed affirmatively helpful toward effec-tuation of a return of the cab to its owner, the jury would have been justified in concluding that respondents had been indifferent should the owner never recover his cab and thus had specific intent that the owner be deprived permanently of it. The presiding Justice in Greenlaw, therefore, correctly declined to give the instruction therein requested. To the extent that by sustaining the exception to the refusal of the presiding Justice to charge the jury as had been requested, State v. Greenlaw decided to the contrary, it is overruled. 5

2.

The foregoing analysis reveals lack of merit in a second point here raised by defendant — that there was error in the *360 charge of the presiding Justice concerning the specific intent requisite for robbery.

Defendant first refers to portions of the charge in which the presiding Justice described respects in which the proof of requisite specific intent would be legally deficient. These extracts are:

(a) “If you find that the defendant . . . intended to take the car temporarily with the idea [to abandon] it where it would be returned to Mr. Prout, . . . or to make arrangements to return it to Mr. Prout ... he cannot be guilty of robbery”;

(b) "... was that intent in their mind to bring that car back to Mr. Prout. . If you find they did . then he is not guilty of robbery”;

(c) “. . . if you find . . . that he intended to return it to him, see that it was returned, you find him not guilty.” (all above emphases supplied)

Defendant then adverts to another portion of the charge in which the presiding Justice authorized the jury to conclude that the State had sufficiently proved the necessary specific intent:

was not going to return of getting it returned . phasis supplied) O tJ* *• g. 3 ri O HH Q o sr n> S3 S3* <T> I — I S3 <D <5a & ^2 O . £ . S3

Defendant concedes that because he had made no objection at the trial level to the instructions of which he now complains, error in them, if any, is cognizable in this appeal only within the “manifest error-serious injustice” doctrine. State v. Langley, Me., 242 A.2d 688 (1968); State v. Collins, Me., 297 A.2d 620 (1972); State v. McKeough, Me., 300 A.2d 755 (1973); State v. Pratt, Me., 309 A.2d 864 (1973), and State v. Northup, Me., 318 A.2d 489 (1974). Thus predicated, defendant’s claim is patently deficient.

In the foregoing portions of his charge to the jury the presiding Justice acted correctly in seeking to explain to the jury that notwithstanding that defendant may have intended only a temporary use of the Chevelle, if he did not have in his mind a contemplated relinquishment of possession, or control, in some manner deemed by him to have tendency affirmatively to assist in the vehicle’s being returned to the owner, the jury was entitled to find that defendant specifically intended that the owner be deprived permanently of his property. The presiding Justice was striving to clarify this point for the jury by using colloquial phrases such as: “see that it was returned”, “abandoning it where it would be returned”, “idea of getting it returned”, “idea ... to make arrangements to return it” and “intended to . see that it was returned.”

Defendant’s position is that such phraseology suggested to the jury that defendant’s contemplated relinquishment of possession, or control, must tend to aid in the owner’s recovery of his property with a degree of specificity and positiveness much higher than the law demands. The claim is that the instruction would cause the jury to believe erroneously:

“Unless [defendant] Gordon intended to return the car himself or to arrange for its return by taking positive action (such as hiring someone to return it or by reporting it to the authorities) there would exist the requisite intent . . . [for robbery].”

It is doubtful that defendant’s characterization is correct. In any event, even if the error asserted by defendant be assumed, it is at best technical and, on the totality of the evidence, insufficient to have deprived defendant of a fair trial.

Defendant takes nothing from his attack on the charge of the presiding Justice.

*361 3.

Denying a motion of defendant for separate trials and granting the State’s motion that a single trial be held on both indictments, the presiding Justice ordered the two indictments against defendant to be tried together. Having objected to the rulings, defendant now claims on appeal that the presiding Justice committed reversible error.

Rule 13 M.R.Crim.P., authorizes

“ two or more indictments . to be tried together if the offenses, . . . could have been joined in a single indictment . . ..”

Separate offenses may be joined in a single indictment (charged in separate counts) if the offenses

“ . are based on . two or more acts or transactions which are connected or which constitute parts of a common scheme or plan.” Rule 8(a) M.R.Crim.P. (emphasis supplied)

The use of the disjunctive in Rule 8(a) reveals that notwithstanding that the acts underlying two offenses may fail as “parts of a common scheme or plan”, if they are in any manner “connected”, the separate offenses may be joined in one indictment and, if charged in separate indictments, heard in a single trial.

The question here, then, is whether some reasonable connection may be discerned between the acts on which the charge of “armed robbery” rests and the conduct underlying the accusation that defendant, with intent to kill, assaulted Officer Stultz. If there is such reasonable connection, the presiding Justice had a broad discretion to order one trial on the two indictments, and his ruling will not be reversed on appeal except for abuse of discretion. Swett v. State, Me., 268 A.2d 814 (1970).

We conclude that the presiding Justice acted within the proper limits of the discretion reposed in him.

There was a reasonable connection between the conduct of the defendant, as alleged to constitute “armed robbery”, and his conduct as charged to be an “assault with intent to kill.” Essential to the proof of the armed robbery charge was a showing that defendant had specific intent that the owner of the automobile (wrongfully taken) be deprived permanently of it. On this point, all facets of defendant’s use of the automobile and manner of relinquishing possession of it, and, in particular, defendant’s acts to escape apprehension by police officers, would have material bearing upon whether, despite his utterances that he would use the Prout automobile only temporarily and see that the owner would get it back, defendant’s true state of mind was being directed only to a prospective relinquishment of possession of the automobile in whatever manner would be necessary to save himself from being caught rather than to the taking of precautions affirmatively tending to assist toward the owner’s recovery of the automobile.

Moreover, almost all of the prior events, including defendant’s participation in the armed robbery of Prout, would be highly material events concerning the accusation that defendant, with intent to kill, had assaulted Officer Stultz. The prior incidents would tend to establish that defendant was prepared to go to any extremes to effectuate his escape including shooting to kill, as might be necessary, any police officer seeking, or in a position, to apprehend him.

There thus existed a bilateral evi-dentiary interconnection between the conduct of defendant as involved in the “armed robbery” charge and defendant’s acts as alleged to be an assault upon Officer Stultz with intent to kill him. In ordering a single trial on the two indictments charging these offenses against defendant, the presiding Justice avoided undue repetition of evidence and the general duplication of energy and expense involved in the conduct of two separate trials. There was no indication of potential prejudice to the defendant sufficient to offset these benefits. *362 The similarity between the two offenses charged against defendant made it unlikely that the jury would become confused in dealing with the underlying issues. That the jury would be informed that defendant was involved in two crimes is inherent in any situation in which there is a joinder of offenses for trial and, in the absence of any other unusual circumstances, will not by itself be sufficient to mandate separate trials. See: Daly v. United States, 119 U.S.App.D.C. 353, 342 F.2d 932 (1965). Here, no exceptional circumstances indicative of unusual detriment to defendant appear.

The presiding Justice acted within the proper bounds of discretion in ordering a single trial of the two indictments against defendant. Defendant’s contention to the contrary must be rejected.

4.

In his opening statement, having summarized information he expected to elicit as testimony from various persons who would be witnesses for the State, the prosecutor said:

“We also intend to call another witness, the man who was at Standish with the gun, a man named Edwin Strode, and he, of course, knew who was with him at the time, he, in the meantime, having been convicted of robbery himself.”

The prosecutor never called Edwin Strode as a witness for the State. In a conference held in the absence of the jury he gave as his reason:

“. I had intended to call Edwin D. Strode. He is now serving a sentence in the Maine State Prison and has been brought down and is now in Cumberland County Jail and could be brought over.

“However, I have talked with Mr. Strode. He is not willing to testify, has indicated that he will assert his right to whatever constitutional protection he may have, and in light of this . in light of the fact that he’s obviously uncooperative, I do not intend to call him.”

Defendant did not move for a mistrial during, or at the conclusion of, the opening statement of the prosecutor. Neither did defendant request a mistrial when the State rested without having called Strode as a witness. Only now, for the first time at the appellate level, does defendant see fit to complain of the prosecutor’s opening statement remarks about Strode. Defendant claims that (1) in themselves and (2) as coupled with the State’s failure to produce Strode as a witness, the comments concerning Strode deprived defendant of a fair trial thus to require appellate reversal of the judgment of conviction.

We consider, first, defendant’s position as predicated on the combination of the opening remarks and the State’s failure to call Strode as a witness. In this aspect, defendant’s claim is directed to an asserted violation of a specific right guaranteed by the “Bill of Rights”, the “right of confrontation” as protected against State invasion by the Sixth-Fourteenth Amendments to the Constitution of the United States. The argument is that the remarks in the opening statement had the effect of informing the jury that Strode had already confessed to committing the robbery and the prosecutor’s failure, thereafter, to call Strode as a State’s witness caused a violation of defendant’s constitutional right of confrontation because it became highly likely that the jurors would treat the prosecutor’s message as evidence although it was in a form not subject to cross-examination.

The contention must be rejected under the controlling authority of Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L. Ed.2d 684 (1969). Here, as in Frazier v. Cupp: (1) the summary of the evidence expected to be produced through Strode, as a purported accomplice of the defendant, was extremely brief; (2) no undue emphasis had been placed upon it as a critical part of the prosecutor’s case; (3) the *363 prosecutor had not stated expressly that Strode, as the alleged accomplice, had made an extra-judicial confession; 6 and (4). the jury was instructed by the presiding Justice that any statements of counsel are not evidence. 7

In Frazier v. Cupp defendant had carefully preserved for appellate review his claim of error as predicated on a violation of the right of confrontation. He had made appropriate motions for mistrial both at the conclusion of the opening statement of the prosecutor and during the presentation of evidence when there was a failure of the alleged accomplice to testify, subject to cross-examination, to the information summarized by the prosecutor in his opening statement. Yet, the Supreme Court of the United States concluded that there was no violation of defendant’s constitutionally guaranteed right of confrontation. Since in the posture of the instant appeal defendant must show not only a violation of his right of confrontation but also that if such error occurred, its effect, on the totality of the record before us, denied defendant a fair trial, the decision in Frazier v. Cupp is controlling here, a fortiori.

A separate claim by defendant is that the prosecutor’s opening statement reference to Strode’s having been convicted of the robbery for which defendant was on trial was, ipso facto, prosecutorial misconduct sufficiently prejudicial in its effects to have deprived defendant of a fair trial.

Defendant is correct in his assertion that the remarks of the prosecutor were improper conduct by him. Quig v. United States, 33 F.2d 820 (3rd Cir. 1929); State v. Peters, 82 R.I. 292, 107 A.2d 428, 48 A.L.R.2d 999 (1954); Knowles v. State, 44 Ala.App. 163, 204 So.2d 506 (1967). 8

We conclude, however, that the entirety of the record before us reveals that the prosecutor’s improper statement did not render defendant the victim of a fundamentally unfair trial.

Judicial pronouncements as to whether, and how, a potential for prejudice to a de *364 fendant may be purged from a jury’s exposure to extraneous matters inadmissible as evidence reflect the polar extremes of: (1) the concurring statement of Mr. Justice Jackson in Krulewitch v. United States, 336 U.S. 440, 445, 453, 69 S.Ct. 716, 723, 93 L.Ed. 90 (1949):

“The naive assumption that prejudicial effects can be overcome by instructions to the jury, ... all practicing lawyers know to be unmitigated fiction.”

and (2) the comment of Mr. Justice Frankfurter in his dissent in Stewart v. United States, 366 U.S. 1, 11, 21, 81 S.Ct. 941, 954, 6 L.Ed.2d 84 (1961):

“One does not have to accept all the en-comia which opinions . . . have showered on the jury’s functions and values, not to attribute fecklessness to the twelve men and women chosen to sit in this . . . case. To make such attribution is to be unconsciously betrayed, as sophisticates sometimes are, into a depreciation of the capacities of the run of men.”

That individual cases can engender judicial utterances of such divergence underscores that as to the subject-matter now under consideration each case stands essentially on its own facts — with a measure of guidance capable of being derived, however, from the approaches taken in other decided cases having pattern resemblances to the case awaiting decision.

As to the instant case, we find that two of the more recent decisions of the Supreme Court of the United States provide such “pattern” assistance to us.

In Donnelly v. DeChristoforo, - U.S. -, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) the Supreme Court of the United States made two important points concerning prosecutorial misconduct occurring in the form of improper remarks made by a prosecutor as an incidental part of a more comprehensive summarizing statement by him to the jury. First,

“. . . a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” (p. -, 94 S.Ct. p. 1873)

Second, although this kind of prosecutorial misconduct is not to be condoned or generally tolerated, in any given context in which it is being evaluated in terms of whether there has been fundamental unfairness to a defendant it must be clearly differentiated from

“that sort of egregious misconduct held in Miller [v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967) which, in turn, relied on Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935) and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)] and Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)] ... to amount to a denial of constitutional due process.” (p. -, 94 S.Ct. p. 1873)

In Frazier v. Cupp, supra, the Supreme Court of the United States made clear that if a prosecutor’s opening statement mentions extraneous matters evidentially inadmissible and potentially prejudicial to the defendant briefly and in a manner

“not touted to the jury as a crucial part of the prosecution’s case” (p. 736 of 394 U.S., p. 1423 of 89 S.Ct.),

a curative instruction in the charge of the presiding Justice, even if only generally to the effect that statements of the prosecutor are not evidence, can effectively salvage the fundamental fairness of the trial since

“it does not seem at all remarkable to assume that the jury will ordinarily be able to limit its consideration to the evidence introduced during the trial.” (p. 736 of 394 U.S., p. 1423 of 89 S.Ct.)

With Donnelly v. DeChristoforo and Frazier v. Cupp thus affording guidance, *365 we decide that the totality of the record now before us reveals that, here, the prosecutor’s opening statement reference to Strode’s having been convicted of the robbery for which defendant was being tried did not cause defendant's trial to be fundamentally unfair. The prosecutor’s remark was momentary and did not highlight Strode’s conduct or his testimony as a critical feature of the prosecutor’s case. Further, we disagree with defendant’s contention that on the evidence the issue of “animus furandi”, as an essential element of the crime, was extremely close such that even a trivial carry-over of prejudice from the opening statement of the prosecutor would tip the scales against defendant. On the correct application of the proper governing principles of law, as carefully explained ante, the evidence as to “animus furandi” was strongly against the defendant. In his own testimony defendant told the jury that when he took the Prout automobile he was, as he had been the whole day, “ . . . sort of desperate”, and it was in his mind “just to get out of there . and leave the car and get under cover somewhere”, defendant having alrea