State v. Barry

• Decision Date: 15 July 1985
• Parties: STATE of Maine v. John BARRY.
• Court: Maine Supreme Court

Page 825

495 A.2d 825

STATE of Maine v. John BARRY.

Supreme Judicial Court of Maine.

Argued May 2, 1985.

Decided July 15, 1985.

Michael E. Povich, Dist. Atty., Sophie L. Spurr, Asst. Dist. Atty. (orally), Ellsworth, for plaintiff.

Silsby & Silsby, Raymond Williams (orally), Ellsworth, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, VIOLETTE, GLASSMAN and SCOLNIK, JJ.

McKUSICK, Chief Justice.

Defendant John Barry appeals his conviction, entered after a jury trial in Superior Court (Hancock County), of the Class A crime of arson. 17-A M.R.S.A. § 802(1)(A) (1983). In addition to asserting the insufficiency of the evidence to tie him to the crime, defendant contends that during trial the prosecutor and the presiding justice made impermissible comments in regard to identification of the accused and that the jury instruction improperly singled him out for comment on his special interest in the outcome of the proceeding. Finding no reversible error, we affirm.

I.

The standard to be applied to determine whether evidence is sufficient to support a jury's conviction is whether, based on that evidence viewed in the light most favorable to the prosecution, any trier of fact rationally could find beyond a reasonable doubt every element of the offense charged. State v. Lovejoy, 493 A.2d 1035, 1037 (Me.1985). Defendant does not dispute the overwhelming evidence that the fire in his former home was intentionally started. On appeal he contests only the sufficiency of the evidence to prove that it was he who set the fire.

At about 7:00 a.m. on February 21, 1982, two passersby noticed a fire on the doorstep of defendant's former home, then unoccupied. As they watched, a man whom the passersby identified at trial as defendant came out of the bushes near the house and assured them that everything was all right. At about 1:20 p.m. on the same day, a neighbor noticed smoke coming out of the house and called the fire department. The firefighters on responding found and extinguished a slow, smoldering fire. At trial a state fire marshal gave his expert opinion that the fire could have been smoldering for several hours. Thus, the jury could reasonably infer that the fire that the passersby saw in the morning was the same one that was extinguished in the early afternoon. The State also presented evidence that defendant was bitter over the loss, through divorce and financial difficulties, of the house that he had largely built with his own hands, thus suggesting a potential motive for the arson. Without the slightest doubt, the evidence of record was sufficient for the jury rationally to decide, as it did, that it was defendant who set the fire.

II.

Defendant next contends that comments made by the prosecutor and by the judge in the course of the trial were unfairly prejudicial to him. The remarks in question were intended to preserve for the record two witnesses' in-court identification of defendant, and consisted of the prosecutor's statement: "Let the record reflect the witness is referring to the defendant, John Barry," and the presiding justice's similar observation, "[t]he record will reflect the witness has pointed to the defendant, John Barry." Defendant asserts that those two statements improperly "highlighted" the identification testimony in the minds of the jury. At trial, however, defendant failed to object to either of the statements, and so we review the record only for "obvious error affecting substantial rights." State v. True, 438 A.2d 460, 467-69 (Me.1981). We find no error at all in either of the challenged statements, least of all any obvious error. Both were neutral observations that added no force to the in-court identification of defendant; they were reasonably calculated to make a record of the fact that the witnesses had indicated defendant as the person to whom they were referring. The statements made to preserve for the record the in-court identifications were not of the conclusory nature condemned in State v. Guptill, 481 A.2d 772, 774-75 (Me.1984).

III.

Defendant argues finally that it violated his right to due process of law for the presiding justice, after giving instructions to the jury regarding the credibility of witnesses generally, to reiterate those instructions with respect to defendant only. The justice, having once instructed the jurors with regard to their exclusive role in determining the credibility, bias, interest, prejudice, and so on, of each witness, stated that defendant's testimony should be treated like that of any other witness, and was subject to consideration of his interest in the outcome of the prosecution. The justice also told the jurors that if they believed defendant had knowingly testified falsely as to any material point of fact, the jurors had the right to distrust his testimony in other particulars. The...