State v. Albert
| Decision Date | 26 July 1985 |
| Citation | 495 A.2d 1242 |
| Parties | STATE of Maine v. Kevin Lee ALBERT, Sr. |
| Court | Maine Supreme Court |
Janet T. Mills, Dist. Atty., Mark A. Beede, Asst. Dist. Atty. (orally), Auburn, for plaintiff.
Jane Andrews (orally), Lewiston, for defendant.
Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN and SCOLNIK, JJ.
After a jury trial in Superior Court (Androscoggin County), in which the Defendant, Kevin Lee Albert, Sr., was convicted of Class A gross sexual misconduct, 17-A M.R.S.A. § 253(1)(B) (1983), 1 he asserts on appeal (a) that the Superior Court erred in applying M.R.Evid. 412 to exclude evidence of the victim's past sexual behavior, and (b) he further asserts that the court failed to respond sufficiently to the jury's request to have certain testimony read back.
We find no error and affirm the judgment of conviction.
The following evidence was produced at trial. On or about August 19, 1984, the nine-year-old victim was playing with a friend near her home in Lewiston. The two were approached by another young friend who asked if they wanted to play hide-and-seek in the Defendant's apartment. They walked upstairs to the Defendant's apartment; the victim found the door open and stepped in, and her friends remained outside counting as part of the game. The victim testified that the Defendant appeared from behind a curtain, wearing only a shirt and no pants. She was told to remove her clothes and, after complying with that command, the alleged sexual misconduct ensued.
When the next day the victim told her mother what had happened, the mother contacted the police. The victim was promptly brought to the Central Maine Medical Center where she was examined by a physician, whose testimony at trial was consistent with the alleged sexual misconduct.
As the trial progressed the Defendant attempted to elicit evidence of the victim's past sexual behavior through testimony of the victim's mother and a school teacher of the victim. In cross-examination the victim's mother was asked whether the victim "[had] been sexually abused in the past." When the State objected to this question and a bench conference was held, the defense counsel declared that evidence of the victim's past sexual behavior was designed to prevent the jury from assuming that the victim was so innocent that she could not have fabricated her charge against the Defendant. Defense counsel added:
I also will be pursuing at a later time the fact [the victim] has masturbated and the mother was concerned she might have injured her hymen on an earlier date and the mother was preoccupied with the daughter's sexuality.
The court sustained this objection on the basis of Rules 412 and 403, M.R.Evid.
Significantly, there is in the record no offer of proof by defense counsel pursuant to M.R.Evid. 103, 2 which might now support a conclusion that the Superior Court abused its discretion in excluding evidence of the victim's past alleged sexual behavior. In making an offer of proof the party offering the evidence must ensure that the trial court is "fully advised as to the relevancy and admissibility of the proposed testimony." State v. Williams, 462 A.2d 491, 492 (Me.1983) (emphasis in original); see also State v. Johnson, 472 A.2d 1367, 1372 (Me.1984). This was not done. It would be inappropriate for us to overlook this lack of so essential a foundation. See United States v. Nez, 661 F.2d 1203, 1206 (10th Cir.1981). In contrast to the offer of proof made by defense counsel in State v. Davis, 406 A.2d 900, 901 (Me.1979), here defense counsel did not, as was required of him by M.R.Evid. 103(a), make known to the court the substance of the mother's testimony that was to be used to establish what the Defendant claimed was the victim's lack of innocence.
Moreover, defense counsel's statements did not establish the admissibility of this evidence of the victim's past sexual behavior under M.R.Evid. 412, 3 which is often termed the "rape shield" rule. Defense counsel did not clearly link his proposed line of questioning to the victim's injuries. Notwithstanding this absence of an adequate offer of proof, Rule 403, requiring consideration of the danger of unfair prejudice, applies even to evidence made specifically admissible by Rule 412. See United States v. One Feather, 702 F.2d 736, 739 (8th Cir.1983) ().
The defense counsel's offer of proof concerning the substance of the proposed testimony of the victim's teacher reveals no evidence admissible under Rule 412. It was evident that the teacher did not recall or have personal knowledge of several incidents which the Defendant was striving to bring before the jury. She described only one episode of sexual behavior on the school...
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State v. Holland
...jury pool was "typical to the racial outcome," which he suggested he could support only by calling the clerk. See State v. Albert, 495 A.2d 1242, 1243 (Me.1985) ("In making an offer of proof the party offering the evidence must ensure that the trial court is fully advised as to the relevanc......
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Com. v. Ruffen
...be allowed to question the victim about prior incidents either at a voir dire hearing or in the presence of a jury. See State v. Albert, 495 A.2d 1242, 1243 (Me.1985). In prosecutions for rape of a child with force (G.L. c. 265, § 22A [1984 ed.] ) and indecent assault and battery on a child......
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State v. Jacques
...where evidence of prior sexual activity had been excluded. State v. Davis, 406 A.2d 900 (Me.1979). Additionally, in State v. Albert, 495 A.2d 1242 (Me.1985) we implied that, notwithstanding Rule 412, evidence of prior sexual abuse might be admissible if offered for the purpose of challengin......
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Thompson v. State
...however that the adoption of M.R.Evid. 412 1 which became effective on February 1, 1983 changed this area of the law. In State v. Albert, 495 A.2d 1242 (Me.1985), we distinguished Davis not by the intervening adoption of Rule 412 but instead by the defendant's inadequate offer of proof, hol......