State v. Creamer

• Decision Date: 17 November 1977
• Parties: STATE of Maine v. Robert CREAMER.
• Court: Maine Supreme Court

Page 733

379 A.2d 733

STATE of Maine v. Robert CREAMER.

Supreme Judicial Court of Maine.

Nov. 17, 1977.

Henry N. Berry, III, Dist. Atty., Peter Ballou, Deputy Dist. Atty., John Kugler, Law Student, Portland, for plaintiff.

Paul K. Stewart, Maurice Davis, Portland, for defendant.

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

WERNICK, Justice.

A judgment of conviction was entered August 9, 1976, in the Superior Court (Cumberland County) upon a jury verdict (August 4, 1976) finding defendant Robert Creamer guilty, as charged by indictment, of the crime of "Receiving Stolen Goods" (17 M.R.S.A. § 3551). ¹

We deny defendant's appeal from the judgment.

This Court was previously concerned with the facts here involved when it decided State v. Creamer, Me., 359 A.2d 603 (1976). That decision contains a complete statement of the circumstances leading to defendant's arrest, his prior conviction and first appeal.

That first appeal having been sustained, defendant was again tried before a jury. The instant appeal relates to matters occurring at the retrial.

The State called as a witness Dorothy Eldridge, the wife of Woodbury Eldridge. Woodbury Eldridge had previously been convicted of breaking, entering and larceny in the nighttime in connection with the incident here involved. State v. Eldridge, Me., 334 A.2d 862 (1975). Testimony given by Mrs. Eldridge during direct examination was at odds in several respects with testimony given by her at defendant's first trial. More specifically, at the first trial Mrs. Eldridge had identified defendant Creamer as one of the men who had brought the stolen property to her home a few hours after the burglary, but in her direct testimony at the second trial she said she was unsure whether defendant was at her home that night. Under Rule 801(d)(1) M.R.Evid., in effect at the time of the instant trial, the presiding Justice admitted in evidence Mrs. Eldridge's testimony at the first trial, as above-described. There was no objection by defendant. At the conclusion of all the evidence defendant moved for judgment of acquittal, and the motion was denied.

In his charge the presiding Justice told the jury that it was entitled to use prior inconsistent statements of a witness to evaluate the credibility of the witness. Going beyond this, however, the presiding Justice instructed, without objection by defendant, that

" . . . any testimony which was received at that prior trial and was read to you in this case may be considered by you . . . (with) all the other evidence in this case and given such weight as you may think it deserves . . . ."

The effect of this latter part of the instruction was to give substantive evidentiary effect to Mrs. Eldridge's first trial testimony identifying defendant Creamer as one of the men who brought the stolen property to her home a few hours after the robbery.

Defendant asserts on appeal that the presiding Justice erred in attributing such substantive evidentiary effect to Mrs. Eldridge's first-trial testimony. The contention is that Rule 801 does not purport to change prior Maine law as stated in State v. Fournier, Me., 267 A.2d 638 (1970). Since, however, at the time this evidence was offered defendant did not attempt to limit the scope of its admissibility and did not object to the instruction of the presiding Justice expressly giving the testimony substantive force, the issue is being raised for the first time on appeal. We will take cognizance of it as error, if it be error at all, only if it is deemed error so serious as to deprive defendant of a fundamentally fair trial.

We decide that Rule 801 changed the law of Maine which, prior to the promulgation of Rule 801, had treated Mrs. Eldridge's first-trial testimony as hearsay (notwithstanding that it was given under oath and subject to cross-examination) and thus held it admissible in evidence not substantively but only as a prior inconsistent statement of Mrs. Eldridge tending to impeach her...