State v. Dodge

• Citation: 397 A.2d 588
• Parties: STATE of Maine v. Bernard DODGE.
• Decision Date: 08 February 1979
• Court: Supreme Judicial Court of Maine (US)

Page 588

397 A.2d 588

STATE of Maine v. Bernard DODGE.

Supreme Judicial Court of Maine.

Feb. 8, 1979.

Michael E. Povich, Dist. Atty., Genevieve C. Stetson, Asst. Dist. Atty. (orally), Machias, for plaintiff.

Francis J. Hallissey (orally), Machias, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.

McKUSICK, Chief Justice.

Defendant Bernard Dodge was convicted by a Washington County jury of assault with a dangerous weapon upon Victor Mahar. 17-A M.R.S.A. § 208(1)(B) (Supp.1977). ¹ Defendant has timely appealed from the Superior Court judgment entered on the jury's verdict. We deny the appeal.

From the record the jury would have been warranted in finding the following sequence of events. On the morning of Saturday, July 16, 1977, the victim of the alleged assault, Victor Mahar, was collecting rubbish along his usual weekend route in Pembroke. He made a routine stop at the residence of Mrs. Stella Carter, where he encountered an old school friend, Warren Carter. After a short conversation, Mahar continued on his route but with an invitation to come back later that afternoon to "shoot the bull for a while." That he did at about 3:00 p. m. Present at that time were Stella Carter (Warren's mother), Jeannette Eaton (Warren's girlfriend), Rita Rogers (his sister), and defendant Bernard Dodge (Mrs. Rogers' boyfriend), as well as Ed Owens, a friend of Mahar's. The group talked and drank into the evening, during which time defendant continually "needled" Mahar. At one point defendant threatened to push a clothesline pole through the windshield of Mahar's pickup truck.

At about 8:00 p. m., tempers having calmed, defendant and Warren Carter announced their intention to go for more beer. Mahar, stating he needed cigarettes, expressed a desire to go with them. Leaving his truck at Mrs. Carter's, Mahar, defendant, and Warren Carter left in defendant's car. After making their purchases, they went on to defendant Dodge's house in Dennysville, a neighboring town. There they congregated in the kitchen, which overlooks the driveway. A short time later, Mahar's pickup pulled into the driveway. Concerned that someone was driving his truck without permission, Mahar left the house and headed toward the truck. Identified by Mahar in the driver's seat was Rita Rogers, who was accompanied by at least one other person. Before he could reach the truck, however, Mahar was wounded in the leg by a single shot fired from behind and to the left of him. He immediately slumped to the ground. A few moments later defendant appeared above him and stated, "How in hell can I shoot a man when I'm firing in the ground." At the same time, several other persons, including Stella Carter, who apparently arrived with Rita Rogers in Mahar's truck, were berating defendant for shooting Mahar. As a result of the gunshot, the lower third of Mahar's leg was subsequently amputated.

I. Admissibility of Civil Complaint and Interrogatories

At trial, defense counsel sought to question Mahar on the substance of his complaint and his answers to defendant's interrogatories in a civil suit in which Mahar sought damages from defendant for the injuries sustained in the shooting. The defense's purpose was apparently to elicit from Mahar, for purposes of impeachment, both the fact that the complaint alleged, in the alternative, that defendant had "negligently handled (the) firearm," ² and the fact that Mahar had denied in his answers to the interrogatories any knowledge of who had shot him. The State, however, raised a timely objection on the grounds that the pleadings and interrogatories in the civil action were irrelevant to the criminal action. At least partially agreeing, the presiding justice precluded defense counsel from eliciting testimony on any aspect of the civil action, save certain answers by Mahar to the interrogatories.

We note at the outset that defendant has failed to provide us on appeal with a copy of either the complaint or the interrogatories and their corresponding responses. Such an omission severely hampers our review of the issues attempted to be raised for appellate review. See State v. Lang, Me., 396 A.2d 1012 (1979); State v. Woodward, Me., 383 A.2d 661, 663 n. 2 (1978). In any event, we see no error in the trial justice's ruling. The fact (which we assume without having seen the civil complaint) that Mahar's attorney in that initial pleading based his civil claim on three alternative grounds, one of which (negligence) would not support criminal liability, was, at best, of dubious relevance. Cf. McCormick v. Kopmann, 23 Ill.App.2d 189, 203, 161 N.E.2d 720, 729 (1959) (alternative pleadings not admissible as admissions against interest). Rule 8(e)(2), M.R.Civ.P., permits alternative pleading, and any careful civil lawyer would include a negligence claim as well as one for an intentional tort, in order to protect his client against development at trial of the evidence along a line different from the facts as related to him by his client. In the related criminal case, no particular inference can be drawn from what any civil lawyer would plead as a matter of course. In the particular circumstances with which he was presented, the trial justice acted within the scope of his permissible discretion in ruling the civil complaint irrelevant. See State v. Morton, Me., 397 A.2d 171 (1979); State v. Gagne, Me., 362 A.2d 166, 170 (1976).

Defense counsel Was permitted to examine Mahar in regard to his sworn answers to the interrogatories, and defendant's only complaint on appeal is that the interrogatories themselves were not also admitted. Nothing in the record before us suggests that each answer standing alone was not entirely intelligible without reference to the corresponding interrogatory, and the presiding justice committed no error in excluding anything beyond the answers sworn to by the witness Mahar.

II. Impeachment by Prior Inconsistent Statements

Defendant next asks us to resolve the more serious question of whether the trial justice erred in not rendering In limine a ruling denying the State the opportunity to impeach its own witnesses through the introduction of their prior inconsistent extrajudicial statements. The State argues that Rule 607, M.R.Evid., ³ clearly permits such impeachment. See State v. St. Germain, Me., 369 A.2d 631 (1977). Defendant, on the other hand, contends that notwithstanding the language of Rule 607, the trial justice should have, pursuant to Rule 403, M.R.Evid., ⁴ excluded the evidence on the ground that its probative value was outweighed by its highly prejudicial effect. More specifically, defendant argues that the jury was unable to distinguish between impeachment evidence, admissible solely for the purpose of attacking a witness' credibility, ⁵ and substantive evidence, admissible to prove a party's case-in-chief. ⁶ Such a situation, posits defendant, enhanced the possibility that the jury erroneously relied on impeachment evidence as part of the proof of defendant's guilt.

A determination that the danger of unfair prejudice substantially outweighs the probative value of relevant evidence, thereby requiring its exclusion, is one within the sound discretion of the presiding justice. See State v. Clough, Me., 391 A.2d 361, 362 (1978); State v. Saucier, Me.,385 A.2d 44, 47 (1978); See also Field and Murray, Maine Evidence, Advisers' Note to Rule 403, at 59 (1976). As to the prior inconsistent statements, the admissibility of which was here in issue, the probative value that the presiding justice could consider on one side of the Rule 403 balance consisted solely in their tendency to impeach the credibility of the witnesses who allegedly had previously made them. The danger of Unfair prejudice, which the presiding justice had to consider on the other side of the Rule 403 balance, arises from the risk that the out-of-court statements which inculpated defendant in the shooting of Mahar would as a practical matter be used by the jury as substantive proof of defendant's guilt.

At the time defense counsel asked for a ruling In limine, the presiding justice had not heard the testimony of the witnesses, nor had he seen all of the statements the State intended to use. Therefore, rather than rendering a wide-ranging decision without sufficient background knowledge the presiding justice chose to allow the State to conduct its questioning, but with the cautionary instruction that "the mere fact that you have the right (to continue) means that you have to exercise that right very carefully. . . . I'm going to allow you to go into this, but that does not mean that I might not sustain every objection to every question you ask." We find no abuse of discretion in the adoption of such a procedure. On the contrary, the trial justice appropriately deferred his ruling until he knew exactly the circumstances under which the prior inconsistent statements were offered.

Defendant claimed both at trial and before this court that unfair prejudice arises particularly from what he claimed to be a pattern of conduct by the prosecution to seek to prove its case through friends and relatives of defendant who had made prior statements inculpating defendant, but who the prosecution knew would not repeat their stories on the stand. In the case at bar, however, we are not required to decide whether such a pattern of conduct existed here and, if so, whether the total impact of such pattern caused a danger of unfair prejudice to defendant substantially outweighing the prior statements' probative value for impeaching the witnesses. At trial the presiding justice admitted in evidence only one prior inconsistent statement that of Warren Carter, the substance of which did support defendant's guilt and the justice warned the jury of its limited use. At the time that statement was admitted in evidence through the police officer to whom it was allegedly made, the trial court promptly instructed the...