State v. Brown

• Decision Date: 13 June 1974
• Citation: 321 A.2d 478
• Parties: STATE of Maine v. Romeo BROWN.
• Court: Maine Supreme Court

Page 478

321 A.2d 478

STATE of Maine v. Romeo BROWN.

Supreme Judicial Court of Maine.

June 13, 1974.

William T. Hyde, Asst. County Atty., Skowhegan, for plaintiff.

Alan C. Sherman, Robert J. Ringer, Jr., Waterville, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

DELAHANTY, Justice.

At the January term in 1973, a Somerset County jury convicted the Defendant of breaking, entering and larceny in the nighttime. Appellant seeks to raise four issues:

1. Whether the trial Justice erred in advising a prosecution witness during cross-examination that he could refuse to testify as to certain matters on the grounds that his testimony might tend to incriminate him?

2. Whether the Defendant was denied a fair trial in that he was prevented from conducting a complete cross-examination of a prosecution witness?

3. Whether the words 'A True Bill' set forth in the indictment are so prejudicial as to deprive Defendant of a fair trial?

4. Whether the trial Justice's instruction relative to defense counsel's argument was correct as to the question of law involved and whether its effect was potentially prejudicial to Defendant?

The events giving rise to the subject trial concerned the unlawful acquisition and removal of blank checks from the Maple Lane Dairy in Madison, Maine on the night of November 29, 1972. The State's key witness was Robert Huard. His testimony was to the following effect. On the evening of the alleged larceny, he accompanied the Defendant Brown to the premises of the Maple Lane Dairy. Once there, Huard obtained entrance to the building by breaking a window and climbing in through it. He then opened a door which enabled Brown to enter. The office door was locked, so Huard forced it open. Once inside the office, the two men seized a checkbook from a desk drawer. Brown carried the checkbook back to his car and placed it underneath the seat. The two men then drove back to Waterville.

On cross-examination, it was disclosed that Huard had signed an agreement with the County Attorney (not the present County Attorney on this appeal) in the presence of his lawyer. The agreement was the result of plea bargaining and provided for a reduction of the outstanding charge against Huard and a grant of transactional immunity to him in return for his making full disclosure of all matters of a criminal nature within his knowledge. The agreement provided in part:

Whereas said Robert C. Huard and his court appointed attorney, (name omitted), are desirous of entering into plea bargaining; and

Whereas in this regard the said (court appointed attorney) has approached the County Attorneys of Somerset and Kennebec counties; and

Whereas both County Attorneys' offices are desirous of entering into plea bargaining with said Robert C. Huard and his said counsel;

Be it agreed that in return for said Robert C. Huard's making a full disclosure of all matters of a criminal nature within his knowledge the charge of Breaking, Entering and Larcency in the Nighttime at the Maple Lane Dairy, Inc. of which he now stands charged will be dismissed and reduced to a misdemeanor charge of Concealing Stolen Goods and also the State promises the said Robert C. Huard complete and/or transactional immunity as to all other criminal activity now existing within the jurisdiction of the Maine Courts.

At trial, the witness acknowledged that it was his understanding that charges in connection with a series of breaks would be dropped in return for his agreeing to testify. The other charges related to breaks at two auto agencies. The witness testified on cross-examination that checks were also stolen during these other breaks, though none were personally taken by him. He did admit, however, to cashing some of the checks stolen from these other breaks. He admitted to negotiating a check stolen from Roland's Auto Sales. At this point in the cross-examination, the trial Justice interrupted the questioning and advised the witness that he had the right to refuse to testify as to any crime in which he was previously involved that he had not already disclosed. When questioning resumed, defense counsel asked the witness to relate that happened when he negotiated the stolen Roland's Auto Sales check. The witness refused to answer on the grounds that to do so might tend to incriminate him. Objection by defense counsel to the claim of privilege was overruled. ¹

Further questioning related to the checks stolen from Maple Lane Dairy. The witness denied negotiating or attempting to negotiate any of those checks himself. He did admit that a female acquaintance was to negotiate some of the checks, and he was to share in their proceeds. To the witness' knowledge, none of the Maple Lane Dairy checks were successfully negotiated. When interrogation returned to the negotiation of the Roland's Auto Sales checks, the witness again invoked his privilege against self-incrimination.

The only questions which the witness, Robert Huard, refused to answer on the basis of his Fifth Amendment privilege against self-incrimination were those pertaining to the negotiation of checks taken in a separate and unrelated break at Roland's Auto Sales. Prior to considering the right of the witness to claim the privilege against responding to those particular questions, we consider the issue of the underlying legal relevancy of these particular questions on cross-examination.

All facts which tend to prove or disprove the matter at issue or which constitute a link in the chain of circumstantial evidence with respect to the act charged are relevant and should be admissible into evidence within judicial discretion unless excluded by some rule or principle of law. State v. Northup, Me., 318 A.2d 489 (1974); State v. Eaton, Me., 309 A.2d 334 (1974); State v. Norton, 151 Me. 178, 116 A.2d 635 (1955); State v. Hamilton, 149 Me. 218, 100 A.2d 234 (1953).

The disputed questions on cross-examination went to the involvement of the State's witness in a separate and unrelated crime, not involving the Defendant, and for which there was no subsequent prosecution by the State. The purpose of this line of questioning by defense counsel is directed at these objectives:

1. To impeach the witness' credibility by showing prior bad conduct on his part;

2. To impeach the witness' credibility by showing bias on his part.

Specific acts of bad conduct may not be inquired of upon cross-examination for the sole purpose of impugning the character of the witness so as to make his testimony unworthy of belief. Monroe Loan Soc. v. Owen, 142 Me. 69, 46 A.2d 410 (1946). Cf. State v. Flaherty, 128 Me. 141, 146 A. 7 (1929). ²

Separate from such questioning for the purpose of proving bad character, however, is the use of specific prior acts for the purpose of showing bias in the testimony of a witness. Great latitude is allowed on cross-examination to show the special interests of an individual in testifying. Stetson v. Caverly, 133 Me. 217, 175 A. 473 (1935); Ross v. Reynolds, 112 Me. 223, 91 A. 952 (1914). This is especially true where the witness claims to be an accomplice of the defendant. Sound judicial policy demands that defense counsel be given full opportunity to test an accomplice's veracity, motives, and relation to the crime, where his testimony is being offered by the state against the accused. 2 Wharton's Cr. Evidence (13th ed.), § 463; 3A Wigmore, Evidence (J. H. Chadbourn rev.), § 967. Bias may be shown by developing particular facts which are sufficient to provide an intelligent understanding of the witness' particular interest in the prosecution at hand and the resulting potential for partiality in his testimony.

The disputed issue which the defense counsel was attempting to explore on cross-examination was the extent to which, because of his agreement to testify against defendant, the witness was to be excused from prosecution for potentially indictable activity. The purpose of the questioning was not to discredit the character of the witness by specific acts of misconduct, thereby attempting to prove his general unreliability for truth and veracity. Rather, the extent of previous criminal activity was probed for the purpose of showing the extent of Huard's interest in cooperating with the prosecution so as to curry its favor and obtain leniency. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931); State v. Mathis, 47 N.J. 455, 221 A.2d 529 (1966). Here the witness was testifying under what he believed to be a grant of transactional immunity and a dismissal of all potential criminal charges up to that date except for the misdemeanor to which he pleaded guilty. The fact of bargaining between the State and the witness relative to reduction of outstanding charges and protection from future prosecutions may be shown to indicate the potential bias of the witness. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed 2d 104 (1972). Furthermore, where an accomplice testifies against a defendant following a deal between the State and the witness, it is proper to allow cross-examination not only to the existence of the arrangement, but also to the extent of the benefit which the witness is likely to obtain as a result of his cooperating testimony. The interrogation on cross-examination was relevant to that end.

The extent to which counsel may cross-examine witnesses as to collateral issues for purposes of impeachment is left to the sound discretion of the trial justice. State v. Gervais, Me., 317 A.2d 796 (1974); State v. Biddison, 159 Me. 475, 195 A.2d 532 (1963); State v. Whitehead, 151 Me. 135, 116 A.2d 618 (1955); State v. Kimball, 50 Me. 409 (1861). While cross-examination of accomplices appearing for the State should be liberally permitted, the trial Justice is still invested with the discretion of determining the permissible scope of inquiry. In the subject case, the Court specifically allowed the questions of defense ...