State v. Dana
| Decision Date | 19 September 1979 |
| Citation | 406 A.2d 83 |
| Parties | STATE of Maine v. Roy DANA, Jr. |
| Court | Maine Supreme Court |
David M. Cox, Dist. Atty., Gary F. Thorne (orally), Deputy Dist. Atty., Bangor, for plaintiff.
Kollman & Tarbell, Swift Tarbell, III, William C. Kollman, II (orally), Bangor, for defendant.
Before McKUSICK, C. J., POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ., and DELAHANTY, A. R. J.
The defendant has appealed four convictions 1 following guilty verdicts in a jury trial in which all charges had been joined.
We deny each appeal.
The defendant did not dispute the fact that he had done the physical acts attributed to him in the various indictments. The inability to formulate the necessary criminal intent to convert any of those acts into statutory violations because of an advanced state of intoxication was the primary theory of the defense. The appeal is not premised on insufficiency of the evidence, however, but on what the defendant claims to have been the prejudicial nature of two segments of the prosecutor's argument to the jury.
James R. Young, an analytical chemist, testified for the State. Based upon the defendant's weight, the amount of beer and wine the defendant claimed to have consumed, the alcoholic content thereof, and the time period over which it was consumed and metabolized, the chemist theorized the appellant's blood-alcohol level could have been ".86" at the time of the arrest. The only testimony that related this percentage to the defendant's probable condition was contained in the following exchange:
The appellant twice successfully objected to subsequent attempts to elicit testimony relative to his blood-alcohol level. When the prosecutor sought to ask the chemist what the appellant's physical condition would have been if he had attained a blood-alcohol level of ".86," appellant's objection was again sustained.
Prior to final argument by the attorneys, counsel for the appellant sought to limit the State's argument relative to the post-mortem blood-alcohol level. The presiding justice's response was to point out that the prosecutor was bound to argue only those matters which were in evidence.
During his summation the prosecutor referred to the appellant's blood-alcohol level in the following manner:
Again, who are you going to believe? Are you going to believe Roy Dana when he told you he had that amount to drink? Doesn't Dr. Young's analysis assist you in deciding whether or not Mr. Dana was being frank with you? Because if he had consumed all that alcohol that he said he had consumed, his blood-alcohol would have been a .86.
Contrary to assertions by the appellant we are unable to find anything inappropriate within this portion of the prosecutor's argument. The theoretical level of the appellant's blood-alcohol was based upon his own testimony regarding his consumption of beer and wine and was admitted into evidence Without objection. Moreover, testimony from the chemist pertaining to the highest blood-alcohol level he had ever tested was likewise admitted without objection. The State could have properly included this testimony in its summation because the underlying facts were in the testimony. Appellant's claim that the prosecutor violated instructions not to argue the blood-alcohol estimate is unsupported by the record.
The defendant was a witness. He described the quantities of beer and wine he consumed on the day in issue and claimed he had no memory of succeeding events after "getting to Beth's house," testifying, "I lost (my memory) after that." On cross-examination he answered "No" when asked: "You're not in a position to say that these crimes were not committed or that you didn't commit them, are you?" 2
From the defense testimony, if believed, it would have been rational to infer that the defendant had consumed thirty-eight 16-ounce bottles of beer and three "fifths" of wine, all within a 13-hour period prior to his arrest.
John A. Ordway, M.D., Chief of Psychiatry at the Eastern Maine Medical Center, testified for the defense, characterizing the defendant's history as "compatible with a severe passive-aggressive personality." 3 On the basis of the defense testimony as to the quantity of defendant's alcoholic consumption, the doctor stated, "I don't believe that (Dana) could form any criminal intent to do anything as complicated as he is accused of."
On cross-examination it developed that the defendant's only serious interview with Dr. Ordway lasted slightly over two hours. Also, the doctor was able to repeat statements made to him by the defendant. These statements were inconsistent with the defendant's trial testimony that he had "lost" his memory at "Beth's house." The doctor quoted defendant as saying, for example, "I don't remember hearing the glass break clearly but I remember there were cars and I knew it was cops and I remember going out the window and I had two guns with me."
The police officers who arrested the defendant after a short but hot pursuit testified concerning his relative state of sobriety. One stated:
It appeared to me that he'd been drinking. Fairly stable on his feet, the walking didn't indicate a severe drinking . . . . At the station there was an odor of intoxicating liquor about his breath as he talked. He seemed to sit upright in the chair, not have coordination problem of any great extent. . . .
He didn't seem to be lost or disoriented as to where he was.
The other officer testified: "I smelled an odor of liquor but as far as I was concerned he was in complete control of his motor functions."
With this background we now consider this portion of the prosecutor's Rebuttal argument, 4 part of which is claimed to be prejudicial.
(Defense Counsel) would ask you to believe that pulling a trigger on a gun is not a rational act especially when it's pointed at a police officer. The State is not saying that Mr. Dana was rational, nor do we have to prove that. If that gun had been loaded, ladies and gentlemen, that perhaps would not have been a rational act but we do not have to prove that it's rational.
How can you prove somebody's intent? There is no way of putting a microscope to anybody's head and looking through it and seeing what is in that man's mind. The only way to decide somebody's intent is to do it by his actions. If I were to pick a rock up off this floor and throw it through that window, you could assume from my actions and it would be reasonable for you to decide that what I intended to do was break that window with a rock. Now the Defendant could get on the stand and say, I had no such intent, but that's for you to believe or disbelieve him.
The State would draw an analogy between what Mr. Dana and Dr. Ordway had going in that office; Dr. Ordway being a fine, eminent doctor and Roy Dana being an Indian, probably never met Dr. Ordway before in his life. Dr. Ordway was probably dressed in a suit. Mr. Dana was there as a defendant. Can you imagine how those two probably met and how they got along at the beginning? Do you think they're two people who related right off and said, gee, you and I have common backgrounds, I'm going to be able to talk to you very easily, I'll tell you all about my life. Or do you think Mr. Dana had a problem there? Was it reasonable for you to decide Mr. Dana was a little afraid of Dr. Ordway and didn't want to tell him everything?
Maybe that's what Mr. Dana did in this instance. Maybe he told the doctor what he wanted to remember and he forgot what he wanted to forget. Maybe he had some other motive in mind when he was talking to Dr. Ordway. Our answer to Dr. Ordway, ladies and gentlemen, is your common sense and your collective reasoning. (emphasis supplied).
The defendant did not object to this argument at any point, nor did he subsequently request any corrective instruction. In his brief he argues that his failure to request a curative instruction was "based upon trial strategy." The premise of his argument, however, is that the above quoted comments referred to the defendant's race "in a derogatory manner" since they compared the defendant, "being an Indian," with Dr. Ordway, a "fine, eminent doctor."
We would agree with the appellant that the prosecutor's injecting racially prejudicial comments in oral argument, although not objected to, would be reviewable on appeal as "obvious (error) affecting substantial rights." Rule 52(b), M.R.Crim.P. If the purpose of an argument is to impugn the standing of a defendant before the jury and to intimate that such a defendant would be "more likely than those of other races to commit the crime charged," we would have no hesitancy in holding such argument to be improper and prejudicial. STATE V. TORRES, 16 WASH.APP. 254, 257, 554 P.2D 1069, 1072 (1976)5; See also State v. Tibbetts, Me., 299 A.2d 883, 886-91 (1973).
The propriety of the prosecutor's argument was first called to the presiding justice's attention at a hearing on defendant's motion for a new trial. The justice denied the motion, stating:
The Court certainly would make clear that ordinarily any reference to matters of a defendant's race or sex or educational level or any other circumstances not relevant to the proceedings before the Court would be improper argument.
The Court is satisfied that there was no such intended or, in fact, accomplished reaction to the remark made by (the prosecutor) that would warrant granting a new trial. I don't think the term was necessary to the argument being made and I think (the prosecutor) acknowledged that the use of the term was inadvertent. However, the Court is satisfied it was not as prejudicial as would require granting the Motion.
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